The following is an excerpt from a 8-K SEC Filing, filed by BANC OF AMERICA COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-5 on 12/17/2004.
BANC OF AMERICA COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-5 - 8-K - 20041217 - EXHIBIT_8
EXHIBIT 8
Tax Matters Opinion
[LETTERHEAD OF CADWALADER, WICKERSHAM & TAFT LLP]
November 23, 2004
To the Persons Named on
Schedule 1 Hereto
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-5
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 5(e) of
that certain certificate purchase agreement dated as of November 8, 2004
("Certificate Purchase Agreement"), by and among Banc of America Commercial
Mortgage Inc. ("BACM"), Banc of America Securities LLC ("BAS") and Deutsche Bank
Securities Inc. ("Deutsche Bank" and together with BAS, the "Initial
Purchasers"), and pursuant to Section 6 of that certain underwriting agreement
dated November 8, 2004 (the "Underwriting Agreement"), by and among BACM, BAS,
Deutsche Bank, Citigroup Global Markets Inc. ("Citigroup"), Goldman, Sachs & Co.
("Goldman Sachs") and J.P. Morgan Securities Inc. ("JPMorgan", collectively with
BAS, Deutsche Bank, Citigroup and Goldman Sachs, the "Underwriters"). We have
acted as special counsel to BACM in connection with (i) the issuance of the Banc
of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates, Series 2004-5 certificates (the "Certificates"), consisting of
thirty classes: Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A1-A, Class A-J, Class XC, Class XP, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class CS, Class RP-1, Class RP-2, Class RP-3, Class RP-4, Class R-I and Class
R-II Certificates; (ii) the sale by BACM to the Underwriters of the Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A1-A, Class A-J, Class XP,
Class B, Class C and Class D Certificates (collectively, the "Publicly Offered
Certificates"); (iii) the sale by BACM to the Initial Purchasers of the Class
XC, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class CS, Class RP-1, Class RP-2, Class RP-3 and
Class RP-4 Certificates (collectively, the "Privately Offered Certificates").
The Certificates are being issued pursuant to that certain pooling
and servicing agreement, dated as of November 1, 2004 (the "Pooling and
Servicing Agreement"), by and among BACM, as depositor, Bank of America, N.A.,
as master servicer, Lennar Partners, Inc., as special servicer, and Wells Fargo
Bank, N.A., as trustee and REMIC administrator. Capitalized terms used and not
otherwise defined herein have the meanings given to them in the Pooling and
Servicing Agreement. The Certificates will evidence beneficial ownership
interests in a trust fund (the "Trust Fund"), the assets of which will consist
of a pool of mortgage loans identified on Schedule I to the Pooling and
Servicing Agreement, together with certain related assets.
In rendering the opinions set forth below, we have examined and
relied upon originals, copies or specimens, certified or otherwise identified to
our satisfaction, of the Pooling and Servicing Agreement, the Prospectus
Supplement and Prospectus, each dated November 8, 2004 relating to Publicly
Offered Certificates, the Private Placement Memorandum, dated November 8, 2004,
relating to the Privately Offered Certificates (other than the Class CS, Class
RP-1, Class RP-2, Class RP-3 and Class RP-4 Certificates) (the "Private
Placement Memorandum"), the Private Placement Memorandum dated November 8, 2004
relating to the Class CS Certificates (the "Class CS Private Placement
Memorandum"), the Private Placement Memorandum dated November 8, 2004 relating
to the Class RP-1, Class RP-2, Class RP-3 and Class RP-4 Certificates (the
"Class RP Private Placement Memorandum"), the specimen forms of the Certificates
and such certificates, corporate records and other documents, agreements,
opinions and instruments, including, among other things, those delivered at the
closing of the purchase and sale of the Certificates, as we have deemed
appropriate as a basis for such opinion hereinafter expressed. In connection
with such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents, agreements and instruments submitted to us as
originals, the conformity to original documents, agreements and instruments of
all documents, agreements and instruments submitted to us as copies or
specimens, the conformity of the text of each document filed with the Securities
and Exchange Commission through the EDGAR System to the printed document
reviewed by us, the authenticity of the originals of such documents, agreements
and instruments submitted to us as copies or specimens, and the accuracy of the
matters set forth in the documents, agreements and instruments we reviewed. As
to matters of fact relevant to the opinions expressed herein, we have relied
upon, and assumed the accuracy of, the representations and warranties contained
in the Pooling and Servicing Agreement and in certificates and oral or written
statements and other information obtained from BACM, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Underwriters, the
Initial Purchasers and others, and of public officials. Except as expressly set
forth herein, we have not undertaken any independent investigation (including,
without limitation, conducting any review, search or investigation of any public
files, records or dockets) to determine the existence or absence of the facts
that are material to our opinions, and no inference as to our knowledge
concerning such facts should be drawn from our reliance on the representations
of BACM, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Underwriters, the Initial Purchasers and others in connection
with the preparation and delivery of this letter.
In rendering the opinion below, we do not express any opinion
concerning the laws of any jurisdiction other than the substantive federal laws
of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that,
assuming that the elections required by Section 860D(b) of the Internal Revenue
Code of 1986, as amended (the "Code"), are properly made, and assuming
compliance with all relevant provisions of the Pooling and Servicing Agreement
as in effect as of the Closing Date, and with any subsequent changes in law,
including any amendments to the Code or applicable Treasury Regulations
thereunder, (a) REMIC I, REMIC II and the Component Mortgage Loan REMIC will
each qualify for treatment for federal income tax purposes as a "real estate
mortgage investment conduit", as defined in Section 860D of the Code; (b) the
Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-J,
Class XP, Class XC, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
will evidence the "regular interests" in REMIC II and the Class R-II
Certificates will constitute the sole class of "residual interests" in REMIC II
within the meaning of the Code; (c) the REMIC I Regular Interests will
constitute "regular interests" in REMIC I, and the Class R-I Certificates will
represent the sole class of "residual interests" in each of the Component
Mortgage Loan REMIC and REMIC I within the meaning of the Code; and (d) the CS
Component Mortgage Loan Senior Regular Interest, the CS Component Mortgage Loan
REMIC Subordinate Regular Interest, the RP Component Mortgage Loan Senior
Regular Interest and the RP Component Mortgage Loan REMIC Subordinate Regular
Interests will constitute "regular interests" in the Component Mortgage Loan
REMIC.
The foregoing opinion is based on current provisions of the Code,
the Treasury regulations promulgated thereunder, published pronouncements of the
Internal Revenue Service (the "Service") and case law, any of which may be
changed at any time with retroactive effect. Further, you should be aware that
opinions of counsel are not binding on the Service or the courts. We express no
opinion as to any matters covered by this opinion of the laws of any
jurisdiction other than the federal income tax laws of the United States of
America. Additionally, we undertake no obligation to update this opinion in the
event there is either a change in the legal authorities, in the facts or in the
documents on which this opinion is based, or an inaccuracy in any of the
information upon which we have relied in rendering this opinion.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. Without our prior written
consent, this letter is not to be relied upon, used, circulated, quoted or
otherwise referred to by, or assigned to, any other person (including any person
that acquires any Certificates from you or that seeks to assert your rights in
respect of this letter (other than your successor in interest by means of
merger, consolidation, transfer of a business or other similar transaction)) or
for any other purpose. Nevertheless, you may disclose to any and all persons,
without limitation of any kind, the U.S. federal, state and local tax treatment
of the Certificates and the Trust Fund, any fact that may be relevant to
understanding the U.S. federal, state and local tax treatment of the
Certificates and the Trust Fund, and all materials of any kind (including this
opinion letter and any other opinions or other tax analyses) relating to such
U.S. federal, state and local tax treatment and that may be relevant to
understanding such U.S. federal, state and local tax treatment.
In addition, we disclaim any obligation to update this letter for
changes in fact or law, or otherwise.
Very truly yours,
/S/ CADWALADER, WICKERSHAM & TAFT LLP
SCHEDULE 1
Banc of America Securities LLC
214 North Tryon Street
NC1-027-21-02
Charlotte, North Carolina 28255
Banc of America Commercial Mortgage Inc.
214 North Tryon Street
NC1-027-21-02
Charlotte, North Carolina 28255
Bank of America, N.A.
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10038
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
One Chase Manhattan Plaza
New York, New York 10081
Lennar Partners, Inc.
1601 Washington, Avenue
Miami Beach, Florida 33139
Moody's Investors Service, Inc.
99 Church Street, 4th Floor
New York, New York 10007
Standard and Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
EXHIBIT 99.1
Bank of America Mortgage Loan Purchase and Sale Agreement
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of November 23, 2004, between Bank of America, N.A., as
seller (the "Seller" or "Bank of America"), and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") except that the Seller will retain the master
servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in
its capacity as Master Servicer (as defined below) and shall enter into certain
Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling
and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, (ii) certain mortgage loans transferred by General Electric
Capital Corporation ("GECC") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between GECC and the
Purchaser and (iii) certain mortgage loans transferred by German American
Capital Corporation ("GACC") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between GACC and the
Purchaser, to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. and/or Moody's Investors
Service, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of November 1, 2004 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, N.A., as master servicer
(the "Master Servicer"), Lennar Partners, Inc., as special servicer (the
"Special Servicer"), and Wells Fargo Bank, N.A., as trustee (in such capacity,
the "Trustee") and REMIC administrator. Capitalized terms used but not otherwise
defined herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("BAS"), Deutsche Bank Securities Inc. ("Deutsche Bank"),
Citigroup Global markets Inc. ("Citigroup"), Goldman, Sachs & Co. ("Goldman
Sachs") and J.P. Morgan Securities Inc. ("JPMorgan" and, collectively with BAS,
Deutsche Bank and Citigroup, the "Underwriters") pursuant to an underwriting
agreement, dated as of November 8, 2004 (the "Underwriting Agreement"). BACM
intends to sell certain of the remaining Classes of Certificates (the
"Non-Registered Certificates") to BAS and Deutsche Bank, as initial purchasers
(together the "Initial Purchasers"), pursuant to a certificate purchase
agreement dated as of November 8, 2004 (the "Certificate Purchase Agreement").
The Registered Certificates are more fully described in the prospectus dated
November 8, 2004 (the "Basic Prospectus"), and the supplement to the Basic
Prospectus dated November 8, 2004 (the "Prospectus Supplement"; and, together
with the Basic Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The Non-Registered Certificates are more
fully described in three private placement memoranda, each dated November 8,
2004, the private placement memorandum (the "Private Placement Memorandum"),
relating to the Class XC, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates, the private
placement memorandum (the "Class CS Private Placement Memorandum"), relating to
the Class CS Certificates and the private placement memorandum (the "Class RP
Private Placement Memorandum" relating to the Class RP-1, Class RP-2, Class RP-3
and Class RP-4 Certificates and, together with the Private Placement Memorandum
and the Class CS Private Placement Memorandum, the "Memoranda") as they may be
amended or supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memoranda and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of November 8, 2004 (the
"Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters
and the Initial Purchasers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be $646,695,487.39, which amount includes interest accrued on the Mortgage
Loans on or after the Cut-off Date and which amount shall be payable on or about
November 23, 2004 in immediately available funds. The Purchaser shall be
entitled to all interest accrued on the Mortgage Loans on and after the Cut-off
Date and all principal payments received on the Mortgage Loans after the Cut-off
Date except for principal and interest payments due and payable on the Mortgage
Loans on or before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, the Seller
shall deliver or cause to be delivered to the Purchaser or, if so directed by
the Purchaser, to the Trustee or a custodian designated by the Trustee (a
"Custodian"), the documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(e) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(c). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(c) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(c) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan countersigned by the related title company
or its authorized agent.
(f) Notwithstanding the foregoing, if any of the above-described
documents is not delivered with respect to any Mortgage Loan because such
document has been submitted for recording, and neither such document nor a copy
thereof, in either case with evidence of recording thereon, can be obtained
because of delays on the part of the applicable recording office, then the
Mortgage Loan Seller will not be required to repurchase (or cause the repurchase
of) the related affected Mortgage Loan on the basis of such missing document so
long as such Mortgage Loan Seller continues in good faith to attempt to obtain
such document or such copy. In the event that the Mortgage Loan Seller fails to
deliver the above-referenced documents for a period of 18 months, then the
Master Servicer and the Special Servicer will have the right to obtain such
above-referenced documents directly and to recover any costs and expenses from
the Mortgage Loan Seller (or from the Trust if the Mortgage Loan Seller fails to
reimburse the Master Servicer and the Special Servicer, as applicable, within 90
days; provided, however, that the Mortgage Loan Seller shall remain liable to
reimburse the Trust for any such costs and expenses).
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly authorized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II hereof (subject to any exceptions thereto listed on
Schedule IIA hereof) to and for the benefit of the Purchaser as of the Closing
Date (or as of such other dates specifically provided in the particular
representation and warranty), with respect to (and solely with respect to) each
Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan (including the Bank of America Center Pari Passu Note A-3 Mortgage Loan) or
REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and, if applicable, the terms of the Pooling
and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, any such Material Breach or Material Document Defect, as the case may
be, does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller may, at its option, in lieu of
repurchasing such Defective Mortgage Loan (except in the case of the Bank of
America Center Pari Passu Note A-3 Mortgage Loan) (but, in any event, no later
than such repurchase would have to have been completed), (i) replace such
Defective Mortgage Loan with one or more substitute mortgage loans that
individually and collectively satisfy the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such
substitution and payment to be effected in accordance with the terms of the
Pooling and Servicing Agreement. Any such repurchase or replacement of a
Defective Mortgage Loan shall be on a whole loan, servicing released basis. The
Seller shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Material Breach or Material Document Defect, but if the Seller
discovers a Material Breach or Material Document Defect with respect to a
Mortgage Loan, it will notify the Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-) days;
provided, however, that if the Seller did not receive written notice from
the Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event shall be deemed to have
occurred during such Initial Resolution Period and the immediately
preceding clause (iii) of this definition will be deemed to apply.
In addition, the applicable Seller shall have an additional 90 days
to cure such Material Document Defect or Material Beach, provided that the
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach and such failure to cure is solely the result
of a delay in the return of documents from the local filing or recording
authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Crossed-Collateralized Mortgage Loan and to each other Mortgaged
Property included in such portfolio and the Seller shall repurchase or
substitute for any related Crossed-Collateralized Mortgage Loan in the manner
described above unless, in the case of a Material Breach or Material Document
Defect, both of the following conditions would be satisfied if the Seller were
to repurchase or substitute for only the affected Crossed-Collateralized
Mortgage Loans or affected Mortgaged Properties as to which a Material Breach or
Material Document Defect had occurred without regard to this paragraph: (i) the
debt service coverage ratio for any remaining Cross-Collateralized Mortgage
Loans or Mortgaged Properties for the four calendar quarters immediately
preceding the repurchase or substitution is not less than the greater of (a) the
debt service coverage ratio immediately prior to the repurchase, (b) the debt
service coverage ratio on the Closing Date, and (c) 1.25x and (ii) the
loan-to-value ratio for any remaining Crossed-Collateralized Mortgage Loans or
Mortgaged Properties is not greater than the lesser of (a) the loan-to-value
ratio immediately prior to the repurchase, (b) the loan-to-value ratio on the
Closing Date, and (c) 75%. In the event that both of the conditions set forth in
the preceding sentence would be satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loan or Mortgaged Properties as to which the Material Breach or Material
Document Defect exists or to repurchase or substitute for the aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Loan or affected Mortgaged Property
or, in the case of a Cross-Collateralized Loan, to forbear from enforcing any
remedies against the other's Primary Collateral (as defined below), but each is
permitted to exercise remedies against the Primary Collateral securing its
respective affected Cross-Collateralized Mortgage Loans or Mortgaged Properties,
including, with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not impair the
ability of the other party to exercise its remedies against its Primary
Collateral. If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Cross-Collateralized Mortgage Loans or Mortgaged Properties held by
such party, then both parties shall forbear from exercising such remedies until
the related Mortgage Loan documents can be modified to remove the threat of
impairment as a result of the exercise of remedies. "Primary Collateral" shall
mean the Mortgaged Property directly securing a Cross-Collateralized Mortgage
Loan excluding, however, any Mortgaged Property as to which the related lien may
only be foreclosed upon by exercise of cross-collateralization of such loans.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto ), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
November 1, 2004, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the subject
Mortgage Loan, together with funds reasonably estimated by the Purchaser
to be necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) [Reserved].
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte & Touche LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Wickersham & Taft LLP, 227 West Trade
Street, Suite 2400, Charlotte, North Carolina 28202 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters, the Initial Purchasers and BACM may rely, attaching
thereto as exhibits the organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller, each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any preliminary Prospectus Supplement, Prospectus Supplement and Memoranda
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memoranda stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, compared the results of
their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, and found
each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 214
North Tryon Street, NC1-027-21-02, Charlotte, North Carolina 28255, Attention:
Stephen Hogue, telecopy number: (704) 386-1094, with a copy to Paul E. Kurzeja,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 100 North
Tryon Street, 20th Floor, Charlotte, North Carolina 28255, or such other address
as may hereafter be furnished to the Seller in writing by the Purchaser; if to
the Seller, addressed to Bank of America, N.A., 214 North Tryon Street,
NC1-027-21-02, Charlotte, North Carolina 28255, Attention: Stephen Hogue,
telecopy number: (704) 386-1094, with a copy to Paul E. Kurzeja, Esq., Assistant
General Counsel, at Bank of America Corporate Center, 100 North Tryon Street,
20th Floor, Charlotte, North Carolina 28255, or to such other addresses as may
hereafter be furnished to the Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in this Agreement and
in the Pooling and Servicing Agreement and covering all the Mortgage Loans in
such Cross-Collateralized Group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan. "Cross-Collateralized Mortgage Loan"
shall mean any Mortgage Loan that is cross-collateralized and cross-defaulted
with one or more other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
BANK OF AMERICA, N.A.
By: /s/
------------------------------------
Name: Stephen L. Hogue
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/
------------------------------------
Name: Nidhi Kapila
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Number Loan Number Loan Seller Property Name
--------------- ----------- ----------- ------------------------------------------------------
3 58206 BOFA Abbey West Apartments
4 57487 BOFA Sterling University Villa
5 58340 BOFA Acerno Villas Apartments
7 58396 BOFA AMLI Timberglen
14 55832 BOFA CLK - Paddock Place Apartments
19 58296 BOFA Simon - Cheltenham Square Mall
22 58118 BOFA James River Towne Center
23 58421 BOFA Koreatown Galleria
25 58312 BOFA The Falls at Ocotillo
27 58317 BOFA Richmond Hill Road Plaza
31 58384 BOFA Villa Monaco Shopping Center
32 58275 BOFA Beach Western Commons
33 58310 BOFA Home Depot Center
35 58383 BOFA Shoppes at Victoria Square
36 58137 BOFA The Marketplace at Hollywood Park
37 58129 BOFA Santa Rosa Plaza
38 58091 BOFA Milledgeville Shops
42 58192 BOFA West Marine Plaza
43 58202 BOFA Walgreens - Sacramento, CA
44 58358 BOFA Office Depot/ Michael's
45 58367 BOFA Sonterra Park Market
50 58399 BOFA Bank of America Center
54.1 57840 BOFA Sunrise Medical Tower I
54.2 57840 BOFA Sunrise Medical Tower II
54 57840 BOFA Sunrise Medical Tower I & II (Roll Up)
55 57839 BOFA Sunrise Medical Tower III
56 57842 BOFA Sunrise Medical Tower V
57 57843 BOFA Sunrise Medical Tower IV
Sub-Total Crossed Loans
58 58419 BOFA Medical Mutual of Ohio - Toledo
61 57851 BOFA Medical Family Health Center
63 57855 BOFA Black Hills Medical Park
65 58054 BOFA L'Oreal Warehouse
66 58144 BOFA Tamal Vista Warehouse
70 58381 BOFA TRAK Microwave Industrial Building
73 58435 BOFA All Storage Mustang Road
75 58404 BOFA Cypress Self Storage
77 58386 BOFA A-1 North Hollywood Self Storage
79 58357 BOFA Nob Hill Self Storage
90 58387 BOFA A-1 Santa Ana Self Storage
95.1 58215 BOFA Sun Communities Portfolio 4 - Lafayette Place
95.2 58215 BOFA Sun Communities Portfolio 4 - Lake San Marino
95.3 58215 BOFA Sun Communities Portfolio 4 - Lake Juliana Landings
95.4 58215 BOFA Sun Communities Portfolio 4 - Four Seasons
95 58215 BOFA Sun Communities Portfolio 4 (Roll Up)
96 58216 BOFA Sun Communities - Southfork
Sub-Total Crossed Loans
97.1 58232 BOFA Sun Communities Portfolio 13 - Siesta Bay
97.2 58232 BOFA Sun Communities Portfolio 13 - Candlelight Village
97 58232 BOFA Sun Communities Portfolio 13 (Roll Up)
98 58212 BOFA Sun Communities - Bonita Lake
Sub-Total Crossed Loans
99 58258 BOFA Zeman Portfolio - Alpine Village
100 58284 BOFA Zeman Portfolio - Shady Oaks I & II
101 58282 BOFA Zeman Portfolio - Pleasant Valley MHC and Self Storage
102 58262 BOFA Zeman Portfolio - Edgebrook
103 58270 BOFA Zeman Portfolio - Maple Grove Estates
104 58290 BOFA Zeman Portfolio - Valley Oaks
105 58261 BOFA Zeman Portfolio - Colonial Estates
106 58287 BOFA Zeman Portfolio - Sunny Acres
109 58448 BOFA Hampton Inn - Colton, CA
Total
Sequence Number Street Address City State Zip Code
--------------- ----------------------------------------------------------------------- ---------------- ------- --------
3 250 Epps Bridge Parkway Athens GA 30606
4 2550 West Ironwood Hills Drive Tucson AZ 85745
5 9500 West Maule Avenue Las Vegas NV 89148
7 3565 Timberglen Road Dallas TX 75287
14 2655 Union Hall Road Clarksville TN 37040
19 2385 Cheltenham Avenue Philadelphia PA 19150
22 1829-3825 East Independence Street Springfield MO 65804
23 3250 W. Olympic Boulevard Los Angeles CA 90006
25 1025 - 1095 West Queen Creek Road Chandler AZ 85248
27 77 Richmond Hill Road & 2391 Richmond Avenue Staten Island NY 10314
31 2223 S. Monaco Parkway Denver CO 80222
32 6650 North Beach Street Fort Worth TX 76137
33 1301 West Patrick Street Frederick MD 21702
35 247 SW Port Saint Lucie Boulevard #295 Port Saint Lucie FL 34984
36 3451 West Century Boulevard Inglewood CA 90303
37 5800 Santa Rosa Road Camarillo CA 93012
38 2600 North Columbia Street Milledgeville GA 31061
42 4441-4449 Granite Drive Rocklin CA 95677
43 4495 Mack Road Sacramento CA 95823
44 3065 Atlanta Highway (Route 78) Athens GA 30606
45 1321 North Loop 1604 East San Antonio TX 78253
50 555 California Street, 315 Montgomery Street, and 345 Montgomery Street San Francisco CA 94104
54.1 3201 S. Maryland Parkway Las Vegas NV 89109
54.2 3121 S. Maryland Parkway Las Vegas NV 89109
54 Various Las Vegas NV 89109
55 3006 S. Maryland Parkway Las Vegas NV 89109
56 3101 S. Maryland Parkway Las Vegas NV 89109
57 3196 S. Maryland Parkway Las Vegas NV 89109
58 3737 Sylvania Avenue Toledo OH 43623
61 2825 N State Road 7 Margate FL 33063
63 402-412 Black Hills Lane, SW Olympia WA 98502
65 10345 Philipp Parkway Streetsboro OH 44241
66 195-201-205 Tamal Vista Boulevard Corte Madera CA 94925
70 4726 Eisenhower Boulevard Tampa FL 33634
73 515 North Mustang Road Mustang OK 73064
75 7755 Preserve Lane Naples FL 34119
77 5310 Vineland Avenue North Hollywood CA 91601
79 10325 West Broward Boulevard Plantation FL 33324
90 2555 South Main Street Santa Ana CA 92707
95.1 21155 Warner Avenue Warren MI 48091
95.2 1000 Wiggins Pass Road Naples FL 34110
95.3 166 Juliana Boulevard Auburndale FL 33823
95.4 1350 Country Road 3 Elkhart IN 46514
95 Various Various Various Various
96 1301 North Scott Belton MO 64012
97.1 19333 Summerlin Road Fort Myers FL 33908
97.2 4 Candlelight Drive Sauk Village IL 60411
97 Various Various Various Various
98 26325 Old 41 Road Bonita Springs FL 34135
99 21425 Lincoln Highway Lynwood IL 60411
100 5097 Shady Oaks Road Minooka IL 60447
101 2999 McCool Road Portage IN 46368
102 1801 Dekalb Ave Sycamore IL 60178
103 3800 Belvidere Road Park City IL 60085
104 6208 Lawn Drive Hodgkins IL 60525
105 14139 Western Avenue Dixmoor IL 60406
106 200 Franklin Drive Manteno IL 60950
109 250 N. 9th Street Colton CA 92324
Sequence Number Mortgage Rate (%) AmortizationBasis Original Balance Cut-off Balance
--------------- ----------------- ----------------- ---------------- ---------------
3 4.950% ACT/360 14,000,000 13,952,718
4 4.920% ACT/360 13,600,000 13,600,000
5 5.827% ACT/360 12,400,000 12,400,000
7 4.980% ACT/360 10,400,000 10,400,000
14 5.120% ACT/360 5,610,000 5,610,000
19 5.890% ACT/360 54,941,036 54,941,036
22 5.680% ACT/360 26,250,000 26,080,467
23 5.350% ACT/360 21,000,000 20,979,479
25 5.956% ACT/360 14,800,000 14,800,000
27 5.986% ACT/360 12,000,000 11,977,977
31 5.560% ACT/360 9,150,000 9,150,000
32 5.960% ACT/360 8,800,000 8,800,000
33 5.706% ACT/360 8,450,000 8,425,873
35 5.595% ACT/360 6,750,000 6,750,000
36 5.731% ACT/360 6,500,000 6,500,000
37 6.165% ACT/360 6,000,000 5,984,613
38 5.941% ACT/360 5,100,000 5,081,851
42 5.843% ACT/360 3,900,000 3,885,793
43 6.090% ACT/360 3,600,000 3,590,602
44 5.650% ACT/360 3,500,000 3,495,221
45 5.840% ACT/360 3,490,000 3,483,384
50 4.867% ACT/360 137,000,000 137,000,000
54.1 3,846,251 3,811,830
54.2 4,387,131 4,347,868
54 5.743% ACT/360 8,233,382 8,159,698
55 5.743% ACT/360 8,037,518 7,965,587
56 5.743% ACT/360 2,365,111 2,343,945
57 5.743% ACT/360 1,161,020 1,150,630
19,797,031 19,619,859
58 5.661% ACT/360 19,266,000 19,248,573
61 5.116% ACT/360 4,970,000 4,919,320
63 4.955% ACT/360 3,806,125 3,766,031
65 5.285% ACT/360 20,200,000 20,200,000
66 6.000% ACT/360 11,300,000 11,269,865
70 5.506% ACT/360 4,300,000 4,291,233
73 5.410% ACT/360 6,700,000 6,693,548
75 5.733% ACT/360 6,075,000 6,075,000
77 5.580% ACT/360 5,700,000 5,683,300
79 5.900% ACT/360 5,600,000 5,600,000
90 5.620% ACT/360 3,000,000 2,994,032
95.1 8,049,415 8,049,415
95.2 7,891,583 7,891,583
95.3 5,997,603 5,997,603
95.4 5,681,940 5,681,940
95 4.931% ACT/360 27,620,542 27,620,542
96 4.931% ACT/360 13,360,000 13,360,000
40,980,542 40,980,542
97.1 27,246,133 27,246,133
97.2 9,241,065 9,241,065
97 4.931% ACT/360 36,487,198 36,487,198
98 4.931% ACT/360 1,520,000 1,520,000
38,007,198 38,007,198
99 5.789% ACT/360 17,442,282 17,442,282
100 5.262% ACT/360 12,332,985 12,332,985
101 5.521% ACT/360 7,892,026 7,892,026
102 5.521% ACT/360 6,800,000 6,800,000
103 5.436% ACT/360 6,476,490 6,476,490
104 5.521% ACT/360 4,847,604 4,847,604
105 5.521% ACT/360 4,704,730 4,704,730
106 5.521% ACT/360 3,784,282 3,784,282
109 6.150% ACT/360 4,100,000 4,100,000
$644,617,914
Sequence Number Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment
--------------- ------------------------------------------ -------------------- -------- ---------------
3 57 8/1/2009 1st 74,728
4 117 8/1/2014 1st 72,344
5 117 8/1/2014 1st 72,971
7 58 9/1/2009 1st 0
14 83 10/1/2011 1st 30,528
19 116 7/1/2014 1st 325,524
22 117 8/1/2014 1st 183,249
23 119 10/1/2014 1st 117,267
25 117 8/1/2014 1st 88,315
27 118 9/1/2014 1st 71,838
31 118 9/1/2014 1st 52,298
32 117 8/1/2014 1st 52,534
33 117 8/1/2014 1st 49,076
35 118 9/1/2014 1st 38,729
36 117 8/1/2014 1st 37,854
37 117 8/1/2014 1st 36,612
38 116 7/1/2014 1st 30,384
42 80 7/1/2011 1st 22,990
43 117 8/1/2014 1st 21,793
44 119 10/1/2014 1st 21,808
45 118 9/1/2014 1st 20,567
50 82 9/1/2011 1st 0
54.1
54.2
54 111 2/1/2014 1st 48,013
55 111 2/1/2014 1st 46,871
56 111 2/1/2014 1st 13,792
57 111 2/1/2014 1st 6,770
58 119 10/1/2014 1st 111,344
61 51 2/1/2009 1st 27,032
63 51 2/1/2009 1st 20,328
65 178 9/1/2019 1st 111,983
66 117 8/1/2014 1st 67,749
70 118 9/1/2014 1st 24,431
73 119 10/1/2014 1st 37,664
75 118 9/1/2014 1st 35,849
77 118 9/1/2014 1st 35,276
79 118 9/1/2014 1st 33,216
90 118 9/1/2014 1st 17,260
95.1
95.2
95.3
95.4
95 80 7/1/2011 1st 147,107
96 80 7/1/2011 1st 71,155
97.1
97.2
97 80 7/1/2011 1st 194,331
98 80 7/1/2011 1st 8,096
99 117 8/1/2014 1st 102,221
100 57 8/1/2009 1st 68,195
101 56 7/1/2009 1st 44,912
102 56 7/1/2009 1st 38,697
103 56 7/1/2009 1st 36,513
104 56 7/1/2009 1st 27,587
105 56 7/1/2009 1st 26,773
106 56 7/1/2009 1st 21,535
109 120 11/1/2014 1st 26,794
Sequence Number Administrative Fee Rate Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest
--------------- ----------------------- -------------------------- ------------------------- ------------------
3 0.122% 0.100% 0.020% Fee
4 0.122% 0.100% 0.020% Fee
5 0.122% 0.100% 0.020% Fee
7 0.122% 0.100% 0.020% Fee
14 0.122% 0.100% 0.020% Fee
19 0.042% 0.020% 0.020% Fee/Leasehold
22 0.122% 0.100% 0.020% Leasehold
23 0.122% 0.100% 0.020% Leasehold
25 0.122% 0.100% 0.020% Fee
27 0.122% 0.100% 0.020% Fee/Leasehold
31 0.122% 0.100% 0.020% Fee
32 0.122% 0.100% 0.020% Fee
33 0.122% 0.100% 0.020% Fee
35 0.122% 0.100% 0.020% Fee
36 0.122% 0.100% 0.020% Fee
37 0.122% 0.100% 0.020% Fee
38 0.122% 0.100% 0.020% Fee
42 0.122% 0.100% 0.020% Fee
43 0.122% 0.100% 0.020% Fee
44 0.122% 0.100% 0.020% Fee
45 0.122% 0.100% 0.020% Fee
50 0.052% 0.030% 0.020% Fee
54.1 Fee
54.2 Fee
54 0.122% 0.100% 0.020% Fee
55 0.122% 0.100% 0.020% Fee/Leasehold
56 0.122% 0.100% 0.020% Fee
57 0.122% 0.100% 0.020% Fee/Leasehold
58 0.122% 0.100% 0.020% Fee
61 0.122% 0.100% 0.020% Fee/Leasehold
63 0.122% 0.100% 0.020% Fee
65 0.122% 0.100% 0.020% Fee
66 0.122% 0.100% 0.020% Fee
70 0.122% 0.100% 0.020% Fee
73 0.122% 0.100% 0.020% Fee
75 0.122% 0.100% 0.020% Fee
77 0.122% 0.100% 0.020% Fee
79 0.122% 0.100% 0.020% Fee
90 0.122% 0.100% 0.020% Fee
95.1 Fee
95.2 Fee
95.3 Fee
95.4 Fee
95 0.122% 0.100% 0.020% Fee
96 0.122% 0.100% 0.020% Fee
97.1 Fee
97.2 Fee
97 0.122% 0.100% 0.020% Fee
98 0.122% 0.100% 0.020% Fee
99 0.122% 0.100% 0.020% Fee
100 0.122% 0.100% 0.020% Fee
101 0.122% 0.100% 0.020% Fee
102 0.122% 0.100% 0.020% Fee
103 0.122% 0.100% 0.020% Fee
104 0.122% 0.100% 0.020% Fee
105 0.122% 0.100% 0.020% Fee
106 0.122% 0.100% 0.020% Fee
109 0.122% 0.100% 0.020% Fee
Sequence Number Crossed Original Amortization (months) ARD Loan Grace Period Loan Group
--------------- ---------------- ------------------------------ -------- ------------ ----------
3 No 360 No 5 1
4 No 360 No 10 1
5 No 360 No 5 2
7 No 0 No 10 2
14 No 360 No 10 2
19 No 360 No 5 1
22 No 240 No 5 1
23 No 360 No 5 1
25 No 360 No 5 1
27 No 360 No 10 1
31 No 360 No 10 1
32 No 360 No 5 1
33 No 360 No 10 1
35 No 360 No 10 1
36 No 360 No 10 1
37 No 360 No 10 1
38 No 360 No 10 1
42 No 360 No 5 1
43 No 360 No 10 1
44 No 300 No 10 1
45 No 360 No 5 1
50 No 0 No 0 1
54.1 1
54.2 1
54 Yes(BACM 04-5-C) 360 No 10 1
55 Yes(BACM 04-5-C) 360 No 10 1
56 Yes(BACM 04-5-C) 360 No 10 1
57 Yes(BACM 04-5-C) 360 No 10 1
58 No 360 No 5 1
61 No 360 No 10 1
63 No 360 No 10 1
65 No 360 No 10 1
66 No 360 No 10 1
70 No 360 No 5 1
73 No 360 No 5 1
75 No 348 No 5 1
77 No 300 No 5 1
79 No 360 No 5 1
90 No 360 No 5 1
95.1 1
95.2 1
95.3 1
95.4 1
95 Yes(BACM 04-5-B) 360 No 5 1
96 Yes(BACM 04-5-B) 360 No 5 1
97.1 1
97.2 1
97 Yes(BACM 04-5-A) 360 No 5 1
98 Yes(BACM 04-5-A) 360 No 5 1
99 No 360 No 0 2
100 No 360 No 0 1
101 No 360 No 0 1
102 No 360 No 0 2
103 No 360 No 0 2
104 No 360 No 0 2
105 No 360 No 0 2
106 No 360 No 0 1
109 No 300 No 5 1
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") was true and correct in all material respects as
of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As of the
date of its origination, and to the actual knowledge of the Seller as of
the Closing Date, such Mortgage Loan complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination, funding and servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale, transfer
and assignment to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring such
Mortgage Loan free and clear of any and all liens, pledges, charges,
security interests, participation interests and/or of any other interests
or encumbrances of any nature whatsoever and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan free
and clear of all such liens, claims, pledges, charges and interests or
encumbrances. The Seller has validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to such Mortgage Loan.
The sale of the Mortgage Loans to the Purchaser does not require the
Seller to obtain any governmental or regulatory approval or consent that
has not been obtained. Each Mortgage Note is, or shall be as of the
Closing Date, properly endorsed to the Trustee and each such endorsement
is genuine.
(4) No Holdbacks; Improvements Complete or Escrows Established. The
proceeds of each Mortgage Loan have been fully disbursed (except in those
cases where the full amount of the Mortgage Loan has been disbursed but a
portion thereof is being held in escrow or reserve accounts pending the
satisfaction of certain conditions relating to leasing, repairs or other
matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any on-site or
off-site improvement and as to disbursements of any funds escrowed for
such purpose, have been complied with in all material aspects or any such
funds so escrowed have not been released; provided that partial releases
of such funds in accordance with the applicable Loan Documents may have
occurred.
(5) Legal, Valid and Binding Obligations. Each related Mortgage
Note, Mortgage, Assignment of Leases (if a document separate from the
Mortgage) and other agreement executed in connection with such Mortgage
Loan is a legal, valid and binding obligation of the related Mortgagor or
guarantor (subject to any non-recourse provisions therein and any state
anti-deficiency legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional interest,
yield maintenance charges or prepayment premiums and except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws
affecting the enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of the
related Mortgage File an Assignment of Leases either as a separate
document or as part of the Mortgage. Each related Assignment of Leases
creates a valid, collateral or first priority assignment of, or a valid
perfected first priority security interest in, certain rights under the
related leases, subject only to a license granted to the related Mortgagor
to exercise certain rights and to perform certain obligations of the
lessor under such leases, including the right to operate the related
Mortgaged Property and subject to limits on enforceability described in
Paragraph (5). No Person other than the related Mortgagor owns any
interest in any payments due under the related leases. Each related
Assignment of Leases provides for the appointment of a receiver for rent,
allows the holder to enter into possession to collect rents or provides
for rents to be paid directly to the holder of the Mortgage upon an event
of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset, abatement,
diminution, or rescission or valid defense or counterclaim with respect to
any of the related Mortgage Note, Mortgage(s) or other agreements executed
in connection therewith, except in each case, with respect to the
enforceability of any provisions requiring the payment of default
interest, late fees, additional interest, yield maintenance charges or
prepayment premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations. Each
related assignment of Mortgage and assignment of Assignment of Leases from
the Seller to the Trustee has been duly authorized, executed and delivered
in recordable form by the Seller and constitutes the legal, valid, binding
and enforceable assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its designee, no assignment of
Mortgage and/or assignment of Assignment of Leases in favor of the Trustee
will be required to be prepared or delivered and instead, the Seller shall
take all actions as are necessary to cause the Trust to be shown as the
owner of the related Mortgage Loan on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS. Each related Mortgage and Assignment of Leases is
freely assignable upon notice to but without the consent of the related
Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in Paragraph
(5) above, each related Mortgage is a legal, valid and enforceable first
lien on the related Mortgaged Property, subject only to the following
title exceptions (each such exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially interferes with the
current use or operation of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property, (c) any other exceptions and
exclusions (general and specific) set forth in the mortgagee policy of
title insurance issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely interferes with
the current use or operation of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (d)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases), and (e) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group; and such
Mortgaged Property is free and clear of any mechanics' and materialmen's
liens which are prior to or equal with the lien of the related Mortgage,
except those which are insured against by a lender's title insurance
policy as described above and to the Seller's actual knowledge no rights
are outstanding that under applicable law could give rise to any such lien
that would be prior or equal to the lien of the related Mortgage and is
not bonded over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other instruments, if
any, related to the Mortgage Loan establish and create, and a UCC
Financing Statement has been filed, recorded or submitted for recording in
all places required by applicable law for the perfection of (to the extent
that the filing of such a UCC Financing Statement can perfect such a
security interest), a valid security interest in the personal property
granted under such Mortgage (and any related security agreement), except
as enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of the
rules of equity, and except for certain personal property and fixtures
subject to purchase money security interests and personal property leases
permitted under the terms of the Mortgage Loan. In the case of a Mortgaged
Property operated as a hotel, restaurant, healthcare facility, nursing
home, assisted living facility, self-storage facility, theatre, mobile
home park or fitness center, such personal property includes all personal
property that a prudent institutional lender making a similar mortgage
loan on like properties would deem reasonably necessary to operate the
related Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for permitted
purchase money security interests and leases; provided that any such lease
has been pledged or assigned to the lender and its assigns. In the case of
each Mortgage Loan secured by a hotel, the related Loan Documents contain
such provisions as are necessary and UCC Financing Statements have been
filed or submitted for filing as necessary, in each case, to perfect a
valid first priority security interest in the related revenues with
respect to such Mortgaged Property. An assignment of each UCC Financing
Statement relating to the Mortgage Loan has been delivered by Seller in
blank which the Purchaser or Trustee, as applicable, or designee is
authorized to complete and to file in the filing office in which such UCC
Financing Statement was filed. Each Mortgage Loan and the related Mortgage
(along with any security agreement and UCC Financing Statement), together
with applicable state law, contain customary and enforceable provisions
such as to render the rights and remedies of the holders thereof adequate
for the practical realization against the personal property described
above, and the principal benefits of the security intended to be provided
thereby; provided, if the related security agreement and/or UCC Financing
Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in favor
of the Trustee will be required to be prepared or delivered and instead,
the Seller shall take all actions as are necessary to cause the Trust to
be shown as the owner of the related Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in
rents or any other personal property to the extent that the possession or
control of such items or actions other than the filing of the UCC
Financing Statement as required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental assessments
or charges or water or sewer bills that prior to the Cut-off Date became
due and owing in respect of each related Mortgaged Property have been
paid, or if in dispute, an escrow of funds in an amount sufficient to
cover such payments has been established. Such taxes and assessments shall
not be considered delinquent or due and owing until the date on which
interest or penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments. In
the case of each Mortgage Loan, one or more engineering assessments which
included a physical visit and inspection of the Mortgaged Property were
performed by an independent engineering consultant firm and except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Master Servicer, the
related Mortgaged Property is, to the Seller's knowledge as of the Closing
Date, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material deferred
maintenance or other similar conditions, either (a) an escrow of funds was
required or a letter of credit was obtained in an amount equal to at least
125% of the amount estimated to effect the necessary repairs, or such
other amount as a prudent commercial lender would deem appropriate under
the circumstances sufficient to effect the necessary repairs or
maintenance or (b) such repairs and maintenance have been completed. As of
origination of such Mortgage Loan there was no proceeding pending, and
subsequent to such date, the Seller has no actual knowledge of, any
proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title
policy (or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each Mortgage
Loan), as of the date of the origination of each Mortgage Loan and to the
Seller's knowledge as of the Cut-off Date: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the
boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that
are insured against by the lender's title insurance referred to in
Paragraph (13) below or that do not materially and adversely affect the
value or marketability of such Mortgaged Property, and (b) no improvements
on adjoining properties materially encroached upon such Mortgaged Property
so as to materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured against by
the lender's title insurance referred to in Paragraph (13) below.
(13) Title Insurance. The Seller has received an ALTA lender's title
insurance policy or an equivalent form of lender's title insurance policy
(or if such policy is not yet issued, such insurance may be evidenced by a
"marked up" pro forma policy or title commitment, in either case marked as
binding and countersigned by the title insurer or its authorized agent
either on its face or by an acknowledged closing instruction or escrow
letter) as adopted in the applicable jurisdiction (the "Title Insurance
Policy"), which was issued by a title insurance company qualified to do
business in the jurisdiction where the applicable Mortgaged Property is
located to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of such
Mortgage Loan and its successors and assigns (as sole insureds) that the
related Mortgage is a valid first lien in the original principal amount of
the related Mortgage Loan on the Mortgagor's fee simple interest (or, if
applicable, leasehold interest) in such Mortgaged Property comprised of
real estate, subject only to the Title Exceptions. Such Title Insurance
Policy was issued in connection with the origination of the related
Mortgage Loan. No claims have been made under such Title Insurance Policy.
Such Title Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums thereon
have been paid. Immediately following the transfer and assignment of the
related Mortgage Loan to the Trustee (including endorsement and delivery
of the related Mortgage Note to the Purchaser), such Title Insurance
Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Purchaser and its successors and
assigns without consent or notice to the title insurer. The Seller has not
done, by act or omission, anything that would impair the coverage under
such Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is
not available), (a) access to a public road, (b) that there are no
encroachments of any part of the building thereon over easements, and (c)
that the area shown on the survey is the same as the property legally
described in the related Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage required
under each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located. Each Mortgaged Property was covered by a fire and
extended perils included under the classification "All Risk of Physical
Loss" insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance
and does not permit reduction in insurance proceeds for depreciation. Each
Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption or rent loss insurance policy providing coverage for at least
twelve (12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months of
rental income). If any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such
Mortgage Loan, in an area identified in the Federal Register by the Flood
Emergency Management Agency as a special flood hazard area (Zone A or Zone
V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the maximum
amount of insurance available under the applicable National Flood
Insurance Administration Program. Each Mortgaged Property and all
improvements thereon are also covered by comprehensive general liability
insurance in such amounts as are generally required by reasonably prudent
commercial lenders for similar properties; if any Mortgaged Property is
located in the state of California or in a "seismic zone" 3 or 4, a
seismic assessment was conducted (except in the case of mobile home parks)
at the time of originations and seismic insurance was obtained to the
extent such Mortgaged Property has a PML of greater than twenty percent
(20%) calculated using at least a 450 a year look back with a 10%
probability of exceedance in a 50 year period; all properties in Florida
and within 25 miles of the coast of Texas, Louisiana, Mississippi,
Alabama, Georgia, North Carolina and South Carolina have windstorm
insurance; any nonconformity with applicable zoning laws and ordinances
(1) is not a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the event of
casualty or destruction, may be restored or repaired to materially the
same extent of the use or structure at the time of such casualty, (3) is
covered by law and ordinance insurance in an amount customarily required
by reasonably prudent commercial or multifamily, as applicable, mortgage
lenders, (4) is covered by a zoning endorsement covering any loss to the
mortgagee resulting from such non-conformity or (5) is covered by
insurance that will provide proceeds that, together with the value of the
related land, will be sufficient to repay the Mortgage Loan; and
additionally, for any Mortgage Loan having a Cut-off Date Balance equal to
or greater than $20,000,000, the insurer for all of the required coverages
set forth herein has a claims paying ability rating from Standard &
Poor's, Moody's or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At origination,
and to the Seller's knowledge as of the Closing Date, such insurance was,
or is, as applicable, in full force and effect with respect to each
related Mortgaged Property and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller;
and except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the related
Loan Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse the
proceeds as the repair or restoration progresses, other than with respect
to amounts that are customarily acceptable to commercial and multifamily
mortgage lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan. The insurer with respect to each
policy is qualified to write insurance in the relevant jurisdiction to the
extent required. All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not terminable
(nor may the amount of coverage provided thereunder be reduced) without 30
days' prior written notice to the mortgagee (or, with respect to
non-payment, 10 days' prior written notice to the mortgagee) or such
lesser period as prescribed by applicable law; and no such notice has been
received, including any notice of nonpayment of premiums, that has not
been cured. With respect to each Mortgage Loan, the related Mortgage
requires that the related Borrower or a tenant of such Borrower maintain
insurance as described above or permits the mortgagee to require insurance
as described above. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender after September 11,
2001 or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, for each
Mortgage Loan, (A) the related all risk property casualty insurance policy
and business interruption policy do not exclude acts of terrorism, or any
related damage claims or (B) Borrower has obtained insurance satisfying
the above coverage requirements against damage and business interruption
resulting from acts of terrorism, from coverage as of the later of (i) the
date of origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that any
right to require such coverage may be limited by commercially reasonable
availability. The Mortgage for each Mortgage Loan provides that proceeds
paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the
related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due
under the Mortgage Loan; and provided, further, that, if the related
Borrower holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the related
Ground Lease (as defined in Paragraph (44) below).
(15) No Material Defaults. Other than payments due but not yet 30
days or more delinquent (A) there exists no material default, breach,
violation or event of acceleration under the related Loan Documents and
(B) since the date of origination of such Mortgage Loan, there has been no
declaration by the Seller or prior holder of such Mortgage Loan of an
event of acceleration under the related Loan Documents, and (C) to
Seller's actual knowledge no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration under any of
such documents has occurred and is continuing; the Seller has not waived
any material default, breach, violation or event of acceleration under any
of such documents; and under the terms of each Mortgage Loan, each related
Mortgage Note, each related Mortgage and the other Loan Documents in the
related Mortgage File, no person or party other than the mortgagee may
declare an event of default or accelerate the related indebtedness under
the Loan Documents; provided, however, that this representation and
warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to the
subject matter otherwise covered by any other representation and warranty
made by the Seller in this Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months) has not been, 30 days or more past
due in respect of any Monthly Payment without giving effect to any
applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the holder of
the Mortgage Note, each related Mortgaged Property to secure any other
promissory note or obligation, other than another Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulations 1.860G-2(f)(2) that
treats a defective obligation as a qualified mortgage, or any
substantially similar successor provision) and the related Mortgaged
Property, if acquired by a REMIC in connection with the default or
imminent default of such Mortgage Loan, would constitute "foreclosure
property" within the meaning of Section 860G(a)(8), assuming compliance
with all of the requirements of a "foreclosure property" under Section
856(e)(4) by the Trustee, the Master Servicer, the Special Servicer, as
applicable, and their respective agents, but without regard to the holding
period requirements set forth in Section 856(e)(2). Prepayment Premiums
and yield maintenance charges payable with respect to each Mortgage Loan,
if any, constitute "customary prepayment penalties" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more environmental site
assessments meeting the requirements of the American Society for Testing
and Materials in effect at the time the related report was or the related
reports were prepared covering all environmental hazards typically
assessed for similar properties including use, type and tenants of the
Mortgaged Property (an "Environmental Report"), or an update of such an
assessment, was performed by an experienced licensed (to the extent
required by applicable state law) environmental consulting firm with
respect to each Mortgaged Property securing a Mortgage Loan in connection
with the origination of such Mortgage Loan and thereafter updated such
that, (a) such Environmental Report is dated no earlier than twelve months
prior to the Closing Date, (b) a copy of each such Environmental Report
has been delivered to the Purchaser; and (c) either: (i) no such
Environmental Report provides that as of the date of the report there is a
material violation of any applicable environmental laws with respect to
any circumstances or conditions relating to the related Mortgaged
Property; or (ii) if any such Environmental Report does reveal any such
circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material
respects, then one or more of the following are true--(A) a party not
related to the related Mortgagor with financial resources reasonably
adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or circumstance,
(B) the related Mortgagor was required to provide additional security
adequate to cure the subject violation in all material respects and to
obtain an operations and maintenance plan, (C) such conditions or
circumstances were investigated further and based upon such additional
investigation, an independent environmental consultant recommended no
further investigation or remediation, or recommended only the
implementation of an operations and maintenance program, which the
Mortgagor is required to do, (D) there exists an escrow of funds
reasonably estimated to be sufficient for purposes of effecting such
remediation, (E) the related Mortgaged Property is insured under a policy
of insurance against losses arising from such circumstances and
conditions, (F) the circumstance or condition has been fully remediated,
(G) the related Mortgagor provided a "no further action" letter or other
evidence acceptable to the Seller and that would be acceptable to a
reasonably prudent lender, that applicable federal, state or local
governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or
circumstance, (H) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is the lesser of (a) 2% of the
outstanding principal balance of the related Mortgage Loan and (b)
$200,000, (I) the related Mortgagor or another responsible party is
currently taking such actions, if any, with respect to such circumstances
or conditions as have been required by the applicable governmental
regulatory authority, or (J) a responsible party with financial resources
reasonably adequate to cure the violation provided a guaranty or indemnity
to the related Mortgagor to cover the costs of any required investigation,
testing, monitoring or remediation. To the Seller's actual knowledge and
without inquiry beyond the related Environmental Report, there are no
significant or material circumstances or conditions with respect to any
Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Mortgagor questionnaire delivered to Seller at the
issue of any related environmental insurance policy, if applicable, that
render such Mortgaged Property in material violation of any applicable
environmental laws. The Mortgage, or other Loan Document in the Mortgage
File, for each Mortgage Loan encumbering the Mortgaged Property requires
the related Mortgagor to comply and cause the Mortgaged Property to comply
with all applicable federal, state and local environmental laws and
regulations. The Seller has not taken any action which would cause the
Mortgaged Property not to be in compliance with all federal, state and
local laws pertaining to environmental hazards or which could subject the
Seller or its successors and assigns to liability under such laws. Each
Mortgagor represents and warrants in the related Loan Documents generally
to the effect that except as set forth in certain specified environmental
reports and to the best of its knowledge that as of the date of
origination of such Mortgage Loan, there were no hazardous materials on
the related Mortgaged Property, and that the Mortgagor will not use, cause
or permit to exist on the related Mortgaged Property any hazardous
materials, in any manner which violates federal, state or local laws,
ordinances, regulations, orders, directives, or policies governing the
use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller and its successors and assigns harmless from and against,
or otherwise be liable for, any and all losses resulting from a breach of
environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan, generally including any
and all losses, liabilities, damages, injuries, penalties, fines, expenses
and claims of any kind or nature whatsoever (including without limitation,
attorneys' fees and expenses) paid, incurred or suffered by or asserted
against, any such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if customary, non-judicial foreclosure,
subject to the effects of bankruptcy or similar law affecting the right of
creditors and the application of principles of equity, and there is no
exemption available to the Mortgagor which would interfere with such right
to foreclose except any statutory right of redemption or as may be limited
by anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(21) Bankruptcy. No Mortgaged Property, nor any material portion
thereof, is the subject of and no Mortgagor is a debtor in any state or
federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. No Mortgage Loan contains any equity
participation by the mortgagee thereunder, is convertible by its terms
into an equity ownership interest in the related Mortgaged Property or the
related Mortgagor, has a shared appreciation feature, provides for any
contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or provides for interest-only
payments without principal amortization or for the negative amortization
of interest, except that, in the case of an ARD Loan, such Mortgage Loan
provides that, during the period commencing on or about the related
Anticipated Repayment Date and continuing until such Mortgage Loan is paid
in full, (a) additional interest shall accrue and may be compounded
monthly and shall be payable only after the outstanding principal of such
Mortgage Loan is paid in full, and (b) subject to available funds, a
portion of the cash flow generated by such Mortgaged Property will be
applied each month to pay down the principal balance thereof in addition
to the principal portion of the related Monthly Payment. Neither the
Seller nor any affiliate thereof has any obligation to make any capital
contribution to the Mortgagor under the Mortgage Loan or otherwise nor
holds any equity interest in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does not
permit the related Mortgaged Property or any interest therein, including
any ownership interest in the Mortgagor, to be encumbered by any mortgage
lien or other encumbrance except the related Mortgage or the Mortgage of
another Mortgage Loan without the prior written consent of the holder
thereof. To Seller's knowledge, as of origination, and, to the Seller's
actual knowledge as of the Closing Date, except for cases involving other
Mortgage Loans, none of the Mortgaged Properties securing the Mortgage
Loans is encumbered by any mortgage liens junior to or of equal priority
with the liens of the related Mortgage. The Loan Documents require the
Mortgagor to pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal fees
and expenses and any applicable Rating Agency fees. The Loan Documents
contain a "due on sale" clause, which provides for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan if, without
the prior written consent of the holder of the Mortgage, either the
related Mortgaged Property, or any direct equity interest in the related
Mortgagor, is directly or indirectly pledged, transferred or sold, other
than by reason of family and estate planning transfers, transfers of less
than a controlling interest in the Mortgagor, issuance of non-controlling
new equity interests, transfers that are subject to the holder's approval
of transferee and satisfaction of certain conditions specified in the Loan
Documents, transfers to an affiliate meeting the requirements of the
Mortgage Loan, transfers among existing members, partners or shareholders
in the Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgaged Loans or multi-property Mortgage Loans or
transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied, impaired,
canceled, subordinated or rescinded in any material respect, except
pursuant to a written instrument duly submitted for recordation, to the
extent required, and specifically included in the related Mortgage Loan
File. No alterations, waivers, modifications or assumptions of any kind
have been given, made or consented to by or on behalf of the Seller since
September 21, 2004. The Seller has not taken any intentional action that
would cause the representations and warranties of the related Mortgagor
under the Mortgage Loan not to be true and correct in any material
respect.
(25) Inspection. Each related Mortgaged Property was inspected by or
on behalf of the related originator within the 12 months prior to the
Closing Date.
(26) Releases of Mortgaged Property. Since origination, no portion
of the related Mortgaged Property has been released from the lien of the
related Mortgage, in any manner which materially and adversely affects the
value, use or operation of the Mortgage Loan or materially interferes with
the security intended to be provided by such Mortgage. The terms of the
related Mortgage do not provide for release of any material portion of the
Mortgaged Property from the lien of the Mortgage except (a) in
consideration of payment therefor equal to not less than 125% of the
related allocated loan amount of such Mortgaged Property specifically set
forth in the related Loan Documents, (b) upon payment in full of such
Mortgage Loan, (c) Mortgage Loans which permit defeasance by means of
substituting for the Mortgaged Property (or, in the case of a Mortgage
Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) "government securities" within the meaning of Treas.
Reg. Section 1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans in
accordance with their terms, (d) Mortgage Loans which permit the related
Mortgagor to substitute a replacement property subject to the satisfaction
of enumerated conditions that would be acceptable to a reasonably prudent
commercial or multifamily, as applicable, lender, but which do not include
the consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that was
not given any value in connection with either the initial underwriting or
appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that contains a
provision for any defeasance of mortgage collateral (a "Defeasance Loan"),
the related Mortgage Note, Mortgage or other related Loan Document
contained in the Mortgage File, provides that the defeasance option is not
exercisable prior to a date that is at least two (2) years following the
Closing Date and is otherwise in compliance with applicable statutes,
rules and regulations governing REMICs; requires prior written notice to
the holder of the Mortgage Loan of the exercise of the defeasance option
and payment by Mortgagor of all related fees, costs and expenses as set
forth below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a single-purpose
entity; and requires delivery of a legal opinion that the Trustee has a
perfected security interest in such collateral prior to any other claim or
interest. In addition, each Mortgage loan that is a Defeasance Loan
permits defeasance only with substitute collateral constituting
"government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note (or the portion thereof being defeased) when due,
and in the case of ARD Loans, assuming the Anticipated Repayment Date is
the Stated Maturity Date. Further, the Mortgage or other related Loan
Document contained in the Mortgage File requires that an independent
certified public accountant certify that such government securities are
sufficient to make all such scheduled payments when due. To Seller's
actual knowledge, defeasance under the Mortgage Loan is only for the
purpose of facilitating the release of the Mortgaged Property and not as a
part of an arrangement to collateralize a REMIC with obligations that are
not real estate mortgages. With respect to each Defeasance Loan, the
related Mortgage or other related Loan Document provides that the related
Mortgagor shall (or permits the mortgagee to require the Mortgagor to) (a)
pay all Rating Agency fees associated with defeasance (if Rating Agency
approval is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not limited
to, accountant's fees and opinions of counsel, or (b) provide all opinions
reasonably required by the mortgagee under the related Loan Documents,
including, if applicable, a REMIC opinion and a perfection opinion and any
applicable rating agency letters confirming no downgrade or qualification
of ratings on any classes in the transaction. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the Mortgage Loan or the related documents require (or permit
the mortgagee to require) confirmation from the Rating Agency that
exercise of the defeasance option will not cause a downgrade or withdrawal
of the rating assigned to any securities backed by the Mortgage Loan and
require (or permit the mortgagee to require) the Mortgagor to pay any
Rating Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or Improvements. To
the Seller's knowledge as of the date of origination of such Mortgage
Loan, and, to the Seller's actual knowledge, as of the Cut-off Date the
Mortgaged Property and the improvements located on or forming part of, and
the existing use of, each Mortgaged Property securing a Mortgage Loan was
or are, as applicable, in material compliance with all applicable zoning
laws including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy thereof or
constitute a legal non-conforming use or structure (or, if any such
improvement does not so comply and does not constitute a legal
non-conforming use or structure, either law and ordinance insurance
coverage has been obtained in amounts adequate to avoid loss to the
mortgagee, or such non-compliance and failure does not materially and
adversely affect the value of the related Mortgaged Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an original
principal balance over $5,000,000 requires the Mortgagor to be for at
least for so long as the Mortgage Loan is outstanding, and to Seller's
actual knowledge each Mortgagor is, a Single-Purpose Entity. For this
purpose, "Single-Purpose Entity" means a person, other than an individual,
whose organizational documents provide, or which entity represented and
covenanted in the related Loan Documents, substantially to the effect that
such Mortgagor (i) is formed or organized solely for the purpose of owning
and operating the related Mortgaged Property or Properties; (ii) does not
engage in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any material
assets other than those related to its interest in such Mortgaged Property
or Properties or the financing thereof; (iv) does not and will not have
any indebtedness other than as permitted by the related Mortgage or other
related Loan Documents; (v) maintains its own books, records and accounts,
in each case which are separate and apart from the books, records and
accounts of any other person; and (vi) holds itself out as being a legal
entity, separate and apart from any other person. In addition, with
respect to all Mortgage Loans with an original principal balance of
$15,000,000 or more, the Mortgagor's organizational documents provide
substantially to the effect that the Mortgagor shall: observe all entity
level formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other person; not
commingle its assets or funds with those of any other person; prepare
separate tax returns and financial statements, or if part of a
consolidated group, be shown as a separate member of such group; transact
business with affiliates on an arm's length basis pursuant to written
agreements; hold itself out as being a legal entity, separate and apart
from any other person and such organizational documents provide that: any
dissolution or winding up or insolvency filing for such entity is
prohibited or requires the unanimous consent of an independent director or
member or all partners or members, as applicable; such documents may not
be amended with respect to the Single-Purpose Entity requirements without
the approval of the mortgagee or rating agencies; and the Mortgagor shall
have an outside independent director or member. The Mortgage File for each
such Mortgage Loan having an original principal balance of $20,000,000 or
more contains a counsel's opinion regarding non-consolidation of the
Mortgagor in any insolvency proceeding involving its equity owner or group
of equity owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the requirements
of the related Mortgage Loan and Mortgage and the Mortgagor's
organizational documents regarding Single-Purpose-Entity status. The
organization documents of any Mortgagor on a Mortgage Loan having an
original principal balance of $15,000,000 or more which is a single member
limited liability company provide that the Mortgagor shall not dissolve or
liquidate upon the bankruptcy, dissolution, liquidation or death of the
sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor and,
to the Seller's knowledge, no funds have been received from any person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge, as of
origination there were no, and to the Seller's actual knowledge, as of the
Closing Date, there are no, pending actions, suits, litigation,
arbitration or other proceedings by or before any court, arbitrator or
governmental authority against the Mortgagor (or any related guarantor to
the extent the Seller would consider such guarantor material to the
underwriting or such Mortgage Loan) under any Mortgage Loan or the related
Mortgaged Property that could reasonably be expected to materially and
adversely affect the value of the Mortgaged Property as security for such
Mortgage Loan, the Mortgagor's ability to pay principal, interest or any
other amounts due under such Mortgage Loan or such guarantor's ability to
meet its obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default interest,
late charges or prepayment premiums) of such Mortgage Loan (other than an
ARD Loan after the Anticipated Repayment Date) is a fixed rate, and
complied as of the date of origination with, or was exempt from,
applicable state or federal laws, regulations and other requirements
pertaining to usury.
(34) Trustee Under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage
and applicable law, and (b) no fees or expenses are payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or
in connection with any full or partial release of the related Mortgaged
Property or related security for such Mortgage Loan and all such fees and
expenses are the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related Mortgage
Note is not secured by any collateral that secures a Mortgage Loan that is
not in the Trust Fund and each Mortgage Loan that is cross-collateralized
is cross-collateralized only with other Mortgage Loans sold pursuant to
this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments required
pursuant to the Loan Documents are in the possession, or under the
control, of the Seller or its agent and there are no deficiencies in
connection therewith, and all such escrows, deposits and payments will be
conveyed by the applicable Seller to the Purchaser and identified as such
with appropriate detail on the Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the related
Mortgagor, to the extent required by law, to be qualified to do business,
and requires the related Mortgagor and the related Mortgaged Property to
be in material compliance with all regulations, licenses, permits,
authorizations, restrictive covenants and zoning and building laws, in
each case to the extent required by law or to the extent that the failure
to be so qualified or in compliance would have a material and adverse
effect upon the enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the Seller's
knowledge, as of the date of origination of each Mortgage Loan based on
any of: (i) a letter from governmental authorities, (ii) a legal opinion,
(iii) an endorsement to the related Title Insurance Policy, (iv) a zoning
report from a zoning consultant, or (v) other due diligence that the
originator of the Mortgage Loan customarily performs in the origination of
comparable mortgage loans, and to the Seller's actual knowledge as of the
Closing Date, the related Mortgagor was in possession of all material
licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses and permits have otherwise been issued.
(39) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and the
servicing practices used by the Seller and its affiliates or contractors
engaged by it with respect to the Mortgage Loan have been in all respects
legal and have met customary standards utilized by prudent commercial or
multifamily, as applicable, lenders and servicers.
(40) Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is non-recourse,
except that the Mortgagor and either: a principal of the Mortgagor or
other natural person, with assets other than any interest in the
Mortgagor, has agreed to be jointly and severally liable for all
liabilities, expenses, losses, damages, expenses or claims suffered or
incurred by the holder of the Mortgage Loan by reason of or in connection
with: (i) any fraud or material misrepresentation by the Mortgagor, (ii)
misapplication or misappropriation of rents, insurance proceeds or
condemnation awards or (iii) violation of applicable environmental laws or
breaches of environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any such
guarantor or principal by the Seller or anyone acting on behalf of the
Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes one
or more separate tax lots (or will constitute separate tax lots when the
next tax maps are issued), or, in certain instances, an application has
been made to the applicable governing authority for creation of separate
tax lots that shall be effective for the next tax year (and, with respect
to tax parcels for which such application has been made, prior to the
creation of such separate tax lots, taxes are being escrowed for the
entire existing tax parcel), or is subject to an endorsement under the
related Title Insurance Policy insuring for losses arising from any claim
that the Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan Documents
requires the Mortgagor upon request to provide the owner or holder of the
Mortgage with quarterly (except for Mortgage Loans with an original
principal balance less than $3,000,000) and annual operating statements
(or a balance sheet statement of income and expenses and a statement of
changes in financial position), and such additional information regarding
the Mortgagor and the Mortgaged Property as the owner or holder of the
Mortgage may request which annual financial statements for all Mortgage
Loans with an original principal balance greater than $20 million shall be
audited by an independent certified public accountant upon the request of
the holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured by the
fee interest in the related Mortgaged Property, except that with respect
to Mortgage Loans that are secured by the interest of the related
Mortgagor as a lessee under a ground lease of a Mortgaged Property (a
"Ground Lease") (the term Ground Lease shall mean such ground lease, all
written amendments and modifications, and any related estoppels or
agreements from the ground lessor and, in the event the Mortgagor's
interest is a ground subleasehold, shall also include not only such ground
sublease but also the related ground lease), but not by the related fee
interest in such Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee,
its successors or assigns, in a manner that would materially
adversely affect the security provided by the related Mortgage; and
there has been no material change in the terms of such Ground Lease
since its recordation, with the exception of written instruments
which are a part of the related Mortgage File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Title Exceptions,
and provides that it shall remain prior to any mortgage or other
lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the mortgagee and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(d) Such Ground Lease is in full force and effect, and the
Seller has not received as of the Closing Date notice (nor is the
Seller otherwise aware) that any default has occurred under such
Ground Lease;
(e) Seller or its agent has provided the lessor under the
Ground Lease with notice of its lien, and such Ground Lease requires
the lessor to give notice of any default by the lessee to the
mortgagee, and such Ground Lease, or an estoppel letter received by
the mortgagee from the lessor, further provides that no notice of
termination given under such Ground Lease is effective against such
mortgagee unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time
to gain possession of the interest of the lessee under such Ground
Lease) to cure any default under such Ground Lease, which is curable
after the receipt of written notice of any such default, before the
lessor thereunder may terminate such Ground Lease, and all of the
rights of the mortgagor under such Ground Lease and the related
Mortgage (insofar as it relates to the Ground Lease) may be
exercised by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one or
more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the Seller and its successors
and assigns) which extends not less than the greater of 10 years
beyond the amortization term and 20 years beyond the Stated Maturity
Date for the related Mortgage Loan (or, with respect to any Mortgage
Loan with an Anticipated Repayment Date, 10 years beyond the
amortization term);
(h) Such Ground Lease requires the lessor to enter into a new
lease with the mortgagee under such Mortgage Loan upon termination
of such Ground Lease for any reason, including rejection of such
Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Loan
Documents, taken together, any related insurance proceeds or
condemnation award that is awarded with respect to the leasehold
interest will be applied either (i) to the repair or restoration of
all or part of the related Mortgaged Property, with the mortgagee
under such Mortgage Loan or a trustee appointed by it having the
right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued
interest thereon;
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the absence
of an uncured default, to disturb the possession, interest or quiet
enjoyment of any lessee in the relevant portion of the Mortgaged
Property subject to such Ground Lease for any reason, or in any
manner, which would materially adversely affect the security
provided by the related Mortgage;
(k) Such Ground Lease may not be amended or modified without
the prior consent of the mortgagee under such Mortgage Loan and that
any such action without such consent is not binding on such
mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or rescinded
in any manner which materially interferes with the security intended
to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage Loans
secured by Ground Leases, each of the Mortgagors (or its affiliates) has
title in the fee simple interest in each related Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal; if any ARD Loan is not paid in full by its Anticipated
Repayment Date, and assuming that it is not otherwise in default, the rate
at which such Mortgage Loan accrues interest will increase to the sum of
the original Mortgage Rate and a specified margin not less than 2 percent
(2%); the Anticipated Repayment Date of any such Mortgage Loan is not less
than 7 years from the date of origination; and after the Anticipated
Repayment Date, the Loan Documents provide that excess cash flow after
payment of expenses, including scheduled interest and capital expenditures
approved by the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. To the extent required under
applicable law as of the date of origination, and necessary for the
enforceability or collectability of the Mortgage Loan, the originator of
such Mortgage Loan was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located at all times when it
originated and held the Mortgage Loan.
(48) No Negative Amortization; No Capital Contribution; No Financing
for Incomplete Improvements. No Mortgage Loan, other than an ARD Loan (and
then only after the Anticipated Repayment Date for such ARD Loan),
provides for the negative amortization of interest. Neither the Seller nor
any affiliate thereof has any obligation to make any capital contributions
to the Mortgagor under the Mortgage Loan. The Mortgage Loan was not
originated for the purpose of financing the construction of incomplete
improvements on the related Mortgaged Property other than tenant
improvements.
(49) No Fraud. Neither the Seller, the originator, nor any employee
or agent of the Seller or the originator has participated in any fraud or
intentional material misrepresentation with respect to the Mortgagor, the
Mortgaged Property or any guarantor. To Seller's actual knowledge, no
Mortgagor or guarantor is guilty of defrauding or making an intentional
material misrepresentation to the Seller with respect to the origination
of the Mortgage Loan, the Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note provides a
grace period for delinquent Monthly Payments no longer than 10 days from
the applicable Due Date other than as disclosed in the Mortgage Loan
Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Seller's knowledge, had no interest, direct or indirect, in
the Mortgaged Property or the Mortgagor or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan; the appraisal or a supplemental
letter from the appraiser states that the appraisal satisfies the
appraisal guidelines set forth in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 (as amended), all as in
effect on the date the Mortgage Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the Prospectus
Supplement, (a) no Mortgagor is the Mortgagor with respect to more than
one Mortgage Loan and (b) to the Seller's knowledge, no group of Mortgage
Loans with affiliated mortgagors have an aggregate principal balance
equaling more than $78,987,740.
(53) Environmental Insurance Policies. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor environmental
insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or otherwise to
the insurer under such policy the "pollution conditions" (as
defined in such policy) identified in any environmental
reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to the
insurer under such policy copies of all environmental reports
in the Seller's possession related to such Mortgaged Property,
in each case with respect to (i) and (ii) to the extent
required by such policy or to the extent the failure to make
any such disclosure or deliver any such report would
materially and adversely affect the Purchaser's ability to
recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of the
Mortgage Loan (or 5 years beyond the Anticipated Repayment Date with
respect to an ARD Loan) and is not cancelable during such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and the
environmental insurance for such Mortgage Loan is not a secured
creditor policy but was required to be obtained by the Mortgagor,
then the holder of the Mortgage Loan is entitled to be an additional
insured under such policy, all premiums have been paid, such
insurance is in full force and effect, such policy may not be
cancelled or amended without the consent of the Seller or its
successors and assigns and, to the Seller's knowledge, the Mortgagor
has made the disclosures and complied with the requirements of
clauses (a) and (b) of this Paragraph (53).
(54) Access. The Mortgaged Property is located on or adjacent to a
public road, or has access to an irrevocable easement permitting ingress
and egress.
SCHEDULE IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS
REPRESENTATION 14
Insurance.
James River Towne Center (58118) The related mortgagor is not required
Shoppes of Victoria Square (58383) to obtain terrorism coverage.
Villa Monaco (58384)
CLK - Paddock Place Apartments (55832)
Sun Communities Portfolio 13 (58232) The related Mortgaged Property
Sun Communities Portfolio 4 (58215) includes a club house or community
Sun Communities - Southfork (58216) center that lies in a flood zone
therefore the related mortgagor
maintains flood insurance.
Sun Communities Portfolio 13 (58232) Terrorism insurance is limited to the
Sun Communities - Bonita Lake (58212) lesser of (a) $5,000,000.00 or (b) the
Sun Communities Portfolio 4 (58215) amount of coverage the related
Sun Communities - Southfork (58216) mortgagor could obtain by paying 200%
of the insurance premiums allocable to
terrorism insurance as of the closing
date of the related Mortgage Loan.
REPRESENTATION 19
Environmental Conditions.
Bank of America Center (58399) The soil and groundwater of the
Mortgaged Property has been
contaminated due to petroleum leaks
from underground storage tanks
formerly located on the Mortgaged
Property that belonged to the City and
County of San Francisco ("San
Francisco"). The prior owner of the
Mortgaged Property, 555 California
Street LLC, initiated an action
against San Francisco in relation to
such contamination which resulted in a
Settlement Agreement and Mutual
Release dated December 10, 2003 by and
between San Francisco and 555
California Street LLC (the "Settlement
Agreement").
Pursuant to the terms of the
Settlement Agreement, San Francisco is
required to provide remediation and
monitoring results (which the related
borrower is required to provide to the
mortgagee) until such time as there
are four consecutive quarters of
acceptable remediation and monitoring
results.
The related borrower is required
enforce San Francisco's obligations to
monitor and remediate the
contamination pursuant to the terms of
the Settlement Agreement.
The related borrower is required to
use commercially reasonable efforts to
deliver to mortgagee a letter from the
City and County of San Francisco
Department of Health - Local Oversight
Program which will indicate that
monitoring and remediation is no
longer required under the Settlement
Agreement.
REPRESENTATION 20
Customary Mortgage Provisions.
Bank of America Center (58399) The non-recourse guaranty is not a
Tamal Vista Warehouse (58144) separate document even though the
Mortgaged Property is located in the
State of California.
Sunrise Medical Tower I & II (57840) The environmental indemnity is not a
separate document even though the
Mortgaged Property is located in the
State of Nevada.
REPRESENTATION 22
Whole Loan; Interest Only; No Equity Participation or Contingent Interest.
The Falls at Ocotillo (58312) The Mortgage Loan is interest-only
until the payment date occurring in
September 2007.
Villa Monaco (58384) The Mortgage Loan is interest-only
Shoppes of Victoria Square (58383) until the payment date occurring in
October 2007.
Acerno Villas Apartments (58340) The Mortgage Loan is interest-only
The Marketplace at Hollywood Park until the payment date occurring in
(58137) September 2006.
Beach Western Commons (58275)
CLK - Paddock Place Apartments (55832) The Mortgage Loan is interest-only
until the payment date occurring in
November 2006.
Sterling University Villa (57487) The Mortgage Loan is interest-only
Zeman Portfolio - Alpine Village until the payment date occurring in
(58258) September 2005.
Zeman Portfolio - Shady Oaks I & II
(58284)
Zeman Portfolio - Maple Grove Estates
(58270)
Zeman Portfolio - Sunny Acres (58287) The Mortgage Loan is interest-only
Zeman Portfolio - Valley Oaks (58290) until the payment date occurring in
Zeman Portfolio - Pleasant Valley August 2005.
(58282)
Zeman Portfolio - Edgebrook (58262)
Zeman Portfolio - Colonial Estates
(58261)
Bank of America Center (58399) The Mortgage Loan is interest-only for
AMLI Timberglen (58396) the entire term thereof.
Cypress Self Storage (58404) The Mortgage Loan is interest-only
until the payment date occurring in
October 2006.
Sun Communities Portfolio 13 (58232) The Mortgage Loan is interest-only
Sun Communities - Bonita Lake (58212) until the payment date occurring in
Sun Communities Portfolio 4 (58215) August 2006.
Sun Communities - Southfork (58216)
L'Oreal USA (58054) The Mortgage Loan is interest-only
until the payment date occurring in
October 2008.
Simon-Cheltenham Square (58296) The Mortgage Loan is interest-only
until the payment date occurring in
August 2009.
Rufe Snow (58037) The Mortgage Loan is interest-only
Nob Hill Self Storage (58357) until the payment date occurring in
October 2005.
REPRESENTATION 24
Waivers and Modification.
Santa Rosa Plaza (58129) After September 21, 2004 the related
mortgagee has received a letter
requesting a transfer permitted by the
related loan documents from the
related borrower and such mortgagee is
processing the request.
REPRESENTATION 27
Defeasance.
Sun Communities Portfolio 13 (58232) In connection with a defeasance, the
Sun Communities - Bonita Lake (58212) related borrower is required to
Sun Communities Portfolio 4 (58215) provide defeasance collateral in an
Sun Communities - Southfork (58216) amount necessary to pay scheduled
Simon-Cheltenham Square (58296) principal and interest through the
related lock-out date and the
outstanding principal balance of the
related Mortgage Loan following the
expiration of the related lock-out
period.
REPRESENTATION 30
Single-Purpose Entity.
James River Towne Center (58118) The related mortgagor owns both the
Mortgaged Property and the portion of
the shopping center leased by Kohl's
and Walmart.
REPRESENTATION 41
Non-Recourse Exceptions.
James River Towne Center (58118) The borrower principal is not a
L'Oreal USA (58054) natural person.
Milledgeville Shops (58091)
Beach Western Commons (58275)
Sun Communities Portfolio 13 (58232)
Sun Communities - Bonita Lake (58212)
Sun Communities Portfolio 4 (58215)
Sun Communities - Southfork (58216)
Sterling University Villa (57487)
Shoppes of Victoria Square (58383)
Villa Monaco (58384)
Rufe Snow Village (58307)
Office Depot/ Michael's Store (58358)
Medical Mutual of Ohio - Toledo (58419)
Hampton Inn - Colton, CA (58448) There is no borrower principal.
Simon-Cheltenham Square (58296)
Medical Family Health Center (57851)
Black Hills Medical Park (57855)
Sunrise Medical Tower III (57839)
Sunrise Medical Tower I & II (57840)
Sunrise Medical Tower V (57842)
Sunrise Medical Tower IV (57843)
Sonterra Park Market (58367)
REPRESENTATION 42
Separate Tax Parcels.
James River Towne Center (58118) The tax parcel and the shopping center
which include the Mortgaged Property
also include both Kohl's and Walmart.
The related mortgagor owns both the
Mortgaged Property and the portion of
the shopping center leased by Kohl's
and Walmart. Taxes for the Mortgaged
Property, Kohl's and Walmart are
billed separately by the taxing
authority, and taxes for the Kohl's
and Walmart parcels are paid directly
to the taxing authority by Kohl's and
Walmart.
The related mortgagor has deposited a
reserve with the related mortgagee in
the amount of $265,000.00, which
amount is equal to one year's taxes on
the Kohl's and Walmart portions of the
shopping center. The reserve shall be
released to the related mortgagor upon
a successful division of the parcel
into a separate tax parcel or the
payment in full of the related
Mortgage Loan. In the event that the
real estate taxes are not paid with
respect to any portion of the tax
parcel other than the Mortgaged
Property, the related mortgagee may
use the reserve to pay any such taxes
and the related mortgagor shall be
required to commence making monthly
deposits into the reserve for the
payment of such taxes.
The leases entered into by Kohl's and
Walmart each extend past the term of
the Mortgage Loan on the Mortgaged
Property.
REPRESENTATION 43
Financial Statements.
Sun Communities Portfolio 13 (58232) The annual financial statements of Sun
Sun Communities - Bonita Lake (58212) Communities, Inc. are the only
Sun Communities Portfolio 4 (58215) financial statements which are
Sun Communities - Southfork (58216) required to be audited. The related
borrower is required to provide a
balance sheet and operating statements
for each separate parcel but is not
required to provide annual financial
statements for each separate parcel.
James River Town Center (58118) Audited financial statements may only
L'Oreal USA (58054) be requested upon the occurrence and
Koreatown Galleria (58421) during the continuation of an event of
default under the related loan
documents.
REPRESENTATION 44
Fee/Leasehold Properties.
Richmond Hill Plaza Shopping Center The related Ground Lease does not
(58317) provide that the related Mortgage
shall remain prior to any mortgage on
the fee interest; however, the related
ground lessor agrees that it shall not
encumber the fee without such fee
mortgagee entering into a
subordination, non-disturbance, and
attornment agreement in the form
designated by the mortgagee.
Koreatown Galleria (58421) Condemnation awards shall be
apportioned (i) first to ground lessor
in the amount of ground lessor's
interest in the land (which does not
include a reversionary interest in the
improvements if the condemnation
occurs prior to February 2018), and
(ii) the remainder to ground lessee.
REPRESENTATION 50
Grace Periods.
Tamal Vista Warehouse (58144) The related mortgagor shall not be
deemed to be in default upon the
occurrence of any of the enumerated
events that may constitute a default
unless such default continues for more
than ten days after notice from the
related mortgagee in the case of any
default which can be cured by the
payment of a sum of money.
EXHIBIT 99.2
GACC Mortgage Loan Purchase and Sale Agreement
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of November 23, 2004, between German American Capital
Corporation, as seller (the "Seller" or "GACC"), and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule").
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, (ii) certain mortgage loans transferred by Bank of America, N.A.
("Bank of America") to the Purchaser pursuant to a mortgage loan purchase and
sale agreement, dated as of the date hereof between Bank of America and the
Purchaser and (iii) certain mortgage loans transferred by General Electric
Capital Corporation ("GECC") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between GECC and the
Purchaser, to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. and/or Moody's Investors
Service, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of November 1, 2004 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, N.A., as master servicer
(the "Master Servicer"), Lennar Partners, Inc., as special servicer (the
"Special Servicer"), and Wells Fargo Bank, N.A., as trustee (in such capacity,
the "Trustee") and REMIC administrator. Capitalized terms used but not otherwise
defined herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("BAS"), Deutsche Bank Securities Inc. ("Deutsche Bank"),
Citigroup Global markets Inc. ("Citigroup"), Goldman, Sachs & Co. ("Goldman
Sachs") and J.P. Morgan Securities Inc. ("JPMorgan" and, collectively with BAS,
Deutsche Bank and Citigroup, the "Underwriters") pursuant to an underwriting
agreement, dated as of November 8, 2004 (the "Underwriting Agreement"). BACM
intends to sell certain of the remaining Classes of Certificates (the
"Non-Registered Certificates") to BAS and Deutsche Bank, as initial purchasers
(together, the "Initial Purchasers"), pursuant to a certificate purchase
agreement dated as of November 8, 2004 (the "Certificate Purchase Agreement").
The Registered Certificates are more fully described in the prospectus dated
November 8, 2004 (the "Basic Prospectus"), and the supplement to the Basic
Prospectus dated November 8, 2004 (the "Prospectus Supplement"; and, together
with the Basic Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The Non-Registered Certificates are more
fully described in three private placement memoranda, each dated November 8,
2004, the private placement memorandum (the "Private Placement Memorandum"),
relating to the Class XC, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates, the private
placement memorandum (the "Class CS Private Placement Memorandum"), relating to
the Class CS Certificates and the private placement memorandum (the "Class RP
Private Placement Memorandum" relating to the Class RP-1, Class RP-2, Class RP-3
and Class RP-4 Certificates and, together with the Private Placement Memorandum
and the Class CS Private Placement Memorandum, the "Memoranda") as they may be
amended or supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memoranda and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of November 8, 2004 (the
"Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters
and the Initial Purchasers and pursuant to a supplemental indemnification
agreement, dated as of November 8, 2004 (the "Supplemental Indemnification
Agreement"), among Bank of America, BACM and Seller.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be $320,170,472.55, which amount includes interest accrued on the Mortgage
Loans on or after the Cut-off Date and which amount shall be payable on or about
November 23, 2004 in immediately available funds. The Purchaser shall be
entitled to all interest accrued on the Mortgage Loans on and after the Cut-off
Date and all principal payments received on the Mortgage Loans after the Cut-off
Date except for principal and interest payments due and payable on the Mortgage
Loans on or before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, the Seller
shall deliver or cause to be delivered to the Purchaser or, if so directed by
the Purchaser, to the Trustee or a custodian designated by the Trustee (a
"Custodian"), the documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(e) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(c). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(c) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(c) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan countersigned by the related title company
or its authorized agent.
(f) Notwithstanding the foregoing, if any of the above-described
documents is not delivered with respect to any Mortgage Loan because such
document has been submitted for recording, and neither such document nor a copy
thereof, in either case with evidence of recording thereon, can be obtained
because of delays on the part of the applicable recording office, then the
Mortgage Loan Seller will not be required to repurchase (or cause the repurchase
of) the related affected Mortgage Loan on the basis of such missing document so
long as such Mortgage Loan Seller continues in good faith to attempt to obtain
such document or such copy. In the event that the Mortgage Loan Seller fails to
deliver the above-referenced documents for a period of 18 months, then the
Master Servicer and the Special Servicer will have the right to obtain such
above-referenced documents directly and to recover any costs and expenses from
the Mortgage Loan Seller (or from the Trust if the Mortgage Loan Seller fails to
reimburse the Master Servicer and the Special Servicer, as applicable, within 90
days; provided, however, that the Mortgage Loan Seller shall remain liable to
reimburse the Trust for any such costs and expenses).
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a corporation, duly authorized, validly existing
and in good standing under the laws of the State of Maryland.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II hereof (subject to any exceptions thereto listed on
Schedule IIA hereof)to and for the benefit of the Purchaser as of the Closing
Date (or as of such other dates specifically provided in the particular
representation and warranty), with respect to (and solely with respect to) each
Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan (including the CS Subordinate Component and the RP Subordinate Components)
or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and, if applicable, the terms of the Pooling
and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, any such Material Breach or Material Document Defect, as the case may
be, does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller may, at its option, in lieu of
repurchasing such Defective Mortgage Loan (except for the CS Component Mortgage
Loan and the RP Component Mortgage Loan) (but, in any event, no later than such
repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Material
Breach or Material Document Defect, but if the Seller discovers a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-) days;
provided, however, that if the Seller did not receive written notice from
the Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event shall be deemed to have
occurred during such Initial Resolution Period and the immediately
preceding clause (iii) of this definition will be deemed to apply.
In addition, the applicable Seller shall have an additional 90 days
to cure such Material Document Defect or Material Beach, provided that the
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach and such failure to cure is solely the result
of a delay in the return of documents from the local filing or recording
authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Crossed-Collateralized Mortgage Loan and to each other Mortgaged
Property included in such portfolio and the Seller shall repurchase or
substitute for any related Crossed-Collateralized Mortgage Loan in the manner
described above unless, in the case of a Material Breach or Material Document
Defect, both of the following conditions would be satisfied if the Seller were
to repurchase or substitute for only the affected Crossed-Collateralized
Mortgage Loans or affected Mortgaged Properties as to which a Material Breach or
Material Document Defect had occurred without regard to this paragraph: (i) the
debt service coverage ratio for any remaining Cross-Collateralized Mortgage
Loans or Mortgaged Properties for the four calendar quarters immediately
preceding the repurchase or substitution is not less than the greater of (a) the
debt service coverage ratio immediately prior to the repurchase, (b) the debt
service coverage ratio on the Closing Date, and (c) 1.25x and (ii) the
loan-to-value ratio for any remaining Crossed-Collateralized Mortgage Loans or
Mortgaged Properties is not greater than the lesser of (a) the loan-to-value
ratio immediately prior to the repurchase, (b) the loan-to-value ratio on the
Closing Date, and (c) 75%. In the event that both of the conditions set forth in
the preceding sentence would be satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loan or Mortgaged Properties as to which the Material Breach or Material
Document Defect exists or to repurchase or substitute for the aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Loan or affected Mortgaged Property
or, in the case of a Cross-Collateralized Loan, to forbear from enforcing any
remedies against the other's Primary Collateral (as defined below), but each is
permitted to exercise remedies against the Primary Collateral securing its
respective affected Cross-Collateralized Mortgage Loans or Mortgaged Properties,
including, with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not impair the
ability of the other party to exercise its remedies against its Primary
Collateral. If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Cross-Collateralized Mortgage Loans or Mortgaged Properties held by
such party, then both parties shall forbear from exercising such remedies until
the related Mortgage Loan documents can be modified to remove the threat of
impairment as a result of the exercise of remedies. "Primary Collateral" shall
mean the Mortgaged Property directly securing a Cross-Collateralized Mortgage
Loan excluding, however, any Mortgaged Property as to which the related lien may
only be foreclosed upon by exercise of cross-collateralization of such loans.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto ), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
November 1, 2004, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the subject
Mortgage Loan, together with funds reasonably estimated by the Purchaser
to be necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) [Reserved].
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte & Touche LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Wickersham & Taft LLP, 227 West Trade
Street, Suite 2400, Charlotte, North Carolina 28202 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters, the Initial Purchasers and BACM may rely, attaching
thereto as exhibits the organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Department of Assessment and Taxation of the State of Maryland, dated not
earlier than 30 days prior to the Closing Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller, each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement and the Supplemental
Indemnification Agreement, duly executed by the respective parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any preliminary Prospectus Supplement, Prospectus Supplement and Memoranda
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memoranda stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, compared the results of
their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, and found
each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 214
North Tryon Street, NC1-027-21-02, Charlotte, North Carolina 28255, Attention:
Stephen Hogue, telecopy number: (704) 386-1094, with a copy to Paul E. Kurzeja,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 100 North
Tryon Street, 20th Floor, Charlotte, North Carolina 28255, or such other address
as may hereafter be furnished to the Seller in writing by the Purchaser; if to
the Seller, addressed to it at c/o German American Capital Corporation, 60 Wall
Street, New York, New York 10005, Attention: Lainie Kaye, telecopy number: (212)
797-4487, with a copy to Anna Glick, Esq., at (212) 909-5870, or to such other
addresses as may hereafter be furnished to the Purchaser by the Seller in
writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in this Agreement and
in the Pooling and Servicing Agreement and covering all the Mortgage Loans in
such Cross-Collateralized Group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan. "Cross-Collateralized Mortgage Loan"
shall mean any Mortgage Loan that is cross-collateralized and cross-defaulted
with one or more other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/
------------------------------------
Name: Jeffrey E. Paige
Title: Authorized Signatory
By: /s/
------------------------------------
Name: Helaine M. Kaplan
Title: Vice President
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/
------------------------------------
Name: Nidhi Kapila
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Number Loan Number Loan Seller Property Name
--------------- ----------- ----------- ---------------------------------------------
1 GA20599 GACC Ocean Residences
9.1 DBM20554 GACC 304 East 89th Street
9.2 DBM20554 GACC 406 East 64th Street
9 DBM20554 GACC Annunziata Multifamily Portfolio I (Roll Up)
10.1 DBM20555 GACC 308 West 109th Street
10.2 DBM20555 GACC 462 West 51st Street
10 DBM20555 GACC Annunziata Multifamily Portfolio II (Roll Up)
Sub-Total Crossed Loans
15 DBM20218 GACC Country Club Ridge
20 DBM20193 GACC Congressional Village
21 DBM20192 GACC Jefferson at Congressional (Land)
Sub-Total Crossed Loans
46 DBM20423 GACC Dutch Village
52 DBM20357 GACC Corporate Center
93 GA20413 GACC Charles Square
94 GA20315 GACC Rentar Plaza
Total
Sequence Number Street Address City State Zip Code
--------------- ------------------------------------------------------------------ --------------- ----- --------
1 One West Street New York NY 10004
9.1 304 East 89th Street New York NY 10128
9.2 406 East 64th Street New York NY 10021
9 Various New York NY Various
10.1 308 West 109th Street New York NY 10025
10.2 462 West 51st Street New York NY 10019
10 Various New York NY Various
15 1-101 Rockledge Road / 131-159 East Hartsdale Avenue Hartsdale NY 10530
20 1701-1765 Rockville Pike, 104-109 Halpine Road, 143 Rollins Avenue Rockville MD 20852
21 198 Halpine Road Rockville MD 20852
46 2531 East Lyon Station Road Creedmoor NC 27522
52 110 East Broward Boulevard Fort Lauderdale FL 33301
93 One Bennett Street Cambridge MA 02138
94 66-26 Metropolitan Avenue Middle Village NY 11379
Sequence Number Mortgage Rate (%) AmortizationBasis Original Balance Cut-off Balance
--------------- ----------------- ----------------- ---------------- ---------------
1 4.797% ACT/360 $90,000,000 $90,000,000
9.1 2,514,706 2,514,706
9.2 2,235,294 2,235,294
9 5.100% ACT/360 4,750,000 4,750,000
10.1 1,623,810 1,623,810
10.2 1,476,190 1,476,190
10 5.100% ACT/360 3,100,000 3,100,000
7,850,000 7,850,000
15 5.590% ACT/360 5,500,000 5,500,000
20 6.280% ACT/360 32,500,000 32,500,000
21 6.280% ACT/360 18,500,000 18,500,000
51,000,000 51,000,000
46 5.750% ACT/360 2,900,000 2,900,000
52 5.470% ACT/360 32,900,000 32,900,000
93 5.426% ACT/360 77,000,000 77,000,000
94 4.669% ACT/360 52,000,000 52,000,000
$319,150,000
Sequence Number Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment
--------------- ------------------------------------------ -------------------- -------- ---------------
1 60 11/1/2009 1st
9.1
9.2
9 60 11/1/2009 1st 25,790
10.1
10.2
10 60 11/1/2009 1st 16,831
15 180 11/1/2019 1st 31,540
20 120 11/1/2014 1st 200,743
21 120 11/1/2014 1st 114,269
46 121 12/1/2014 1st 16,924
52 58 9/1/2009 1st 186,184
93 58 9/1/2009 1st 469,934
94 58 9/1/2009 1st 0
Sequence Number Administrative Fee Rate Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest
--------------- ----------------------- -------------------------- ------------------------- ------------------
1 0.032% 0.020% 0.010% Fee
9.1 Fee
9.2 Fee
9 0.032% 0.020% 0.010% Fee
10.1 Fee
10.2 Fee
10 0.032% 0.020% 0.010% Fee
15 0.032% 0.020% 0.010% Fee
20 0.032% 0.020% 0.010% Fee
21 0.032% 0.020% 0.010% Fee
46 0.032% 0.020% 0.010% Fee
52 0.032% 0.020% 0.010% Fee
93 0.032% 0.020% 0.010% Fee
94 0.032% 0.020% 0.010% Fee
Sequence Number Crossed Original Amortization (months) ARD Loan Grace Period Loan Group
--------------- ---------------- ------------------------------ -------- ------------- ----------
1 No 0 No 5 2
9.1 1
9.2 1
9 Yes(BACM 04-5-D) 360 No 5 1
10.1 1
10.2 1
10 Yes(BACM 04-5-D) 360 No 5 1
15 No 360 No 5 2
20 Yes(BACM 04-5-E) 360 No 5 1
21 Yes(BACM 04-5-E) 360 No 5 1
46 No 360 No 15 1
52 No 360 No 5 1
93 No 300 No 0 1
94 No 0 No 5 1
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") was true and correct in all material respects as
of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As of the
date of its origination, and to the actual knowledge of the Seller as of
the Closing Date, such Mortgage Loan complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination, funding and servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale, transfer
and assignment to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring such
Mortgage Loan free and clear of any and all liens, pledges, charges,
security interests, participation interests and/or of any other interests
or encumbrances of any nature whatsoever and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan free
and clear of all such liens, claims, pledges, charges and interests or
encumbrances. The Seller has validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to such Mortgage Loan.
The sale of the Mortgage Loans to the Purchaser does not require the
Seller to obtain any governmental or regulatory approval or consent that
has not been obtained. Each Mortgage Note is, or shall be as of the
Closing Date, properly endorsed to the Trustee and each such endorsement
is genuine.
(4) No Holdbacks; Improvements Complete or Escrows Established. The
proceeds of each Mortgage Loan have been fully disbursed (except in those
cases where the full amount of the Mortgage Loan has been disbursed but a
portion thereof is being held in escrow or reserve accounts pending the
satisfaction of certain conditions relating to leasing, repairs or other
matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any on-site or
off-site improvement and as to disbursements of any funds escrowed for
such purpose, have been complied with in all material aspects or any such
funds so escrowed have not been released; provided that partial releases
of such funds in accordance with the applicable Loan Documents may have
occurred.
(5) Legal, Valid and Binding Obligations. Each related Mortgage
Note, Mortgage, Assignment of Leases (if a document separate from the
Mortgage) and other agreement executed in connection with such Mortgage
Loan is a legal, valid and binding obligation of the related Mortgagor or
guarantor (subject to any non-recourse provisions therein and any state
anti-deficiency legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional interest,
yield maintenance charges or prepayment premiums and except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws
affecting the enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of the
related Mortgage File an Assignment of Leases either as a separate
document or as part of the Mortgage. Each related Assignment of Leases
creates a valid, collateral or first priority assignment of, or a valid
perfected first priority security interest in, certain rights under the
related leases, subject only to a license granted to the related Mortgagor
to exercise certain rights and to perform certain obligations of the
lessor under such leases, including the right to operate the related
Mortgaged Property and subject to limits on enforceability described in
Paragraph (5). No Person other than the related Mortgagor owns any
interest in any payments due under the related leases. Each related
Assignment of Leases provides for the appointment of a receiver for rent,
allows the holder to enter into possession to collect rents or provides
for rents to be paid directly to the holder of the Mortgage upon an event
of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset, abatement,
diminution, or rescission or valid defense or counterclaim with respect to
any of the related Mortgage Note, Mortgage(s) or other agreements executed
in connection therewith, except in each case, with respect to the
enforceability of any provisions requiring the payment of default
interest, late fees, additional interest, yield maintenance charges or
prepayment premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations. Each
related assignment of Mortgage and assignment of Assignment of Leases from
the Seller to the Trustee has been duly authorized, executed and delivered
in recordable form by the Seller and constitutes the legal, valid, binding
and enforceable assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its designee, no assignment of
Mortgage and/or assignment of Assignment of Leases in favor of the Trustee
will be required to be prepared or delivered and instead, the Seller shall
take all actions as are necessary to cause the Trust to be shown as the
owner of the related Mortgage Loan on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS. Each related Mortgage and Assignment of Leases is
freely assignable upon notice to but without the consent of the related
Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in Paragraph
(5) above, each related Mortgage is a legal, valid and enforceable first
lien on the related Mortgaged Property, subject only to the following
title exceptions (each such exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially interferes with the
current use or operation of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property, (c) any other exceptions and
exclusions (general and specific) set forth in the mortgagee policy of
title insurance issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely interferes with
the current use or operation of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (d)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases), and (e) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group; and such
Mortgaged Property is free and clear of any mechanics' and materialmen's
liens which are prior to or equal with the lien of the related Mortgage,
except those which are insured against by a lender's title insurance
policy as described above and to the Seller's actual knowledge no rights
are outstanding that under applicable law could give rise to any such lien
that would be prior or equal to the lien of the related Mortgage and is
not bonded over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other instruments, if
any, related to the Mortgage Loan establish and create, and a UCC
Financing Statement has been filed, recorded or submitted for recording in
all places required by applicable law for the perfection of (to the extent
that the filing of such a UCC Financing Statement can perfect such a
security interest), a valid security interest in the personal property
granted under such Mortgage (and any related security agreement), except
as enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of the
rules of equity, and except for certain personal property and fixtures
subject to purchase money security interests and personal property leases
permitted under the terms of the Mortgage Loan. In the case of a Mortgaged
Property operated as a hotel, restaurant, healthcare facility, nursing
home, assisted living facility, self-storage facility, theatre, mobile
home park or fitness center, such personal property includes all personal
property that a prudent institutional lender making a similar mortgage
loan on like properties would deem reasonably necessary to operate the
related Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for permitted
purchase money security interests and leases; provided that any such lease
has been pledged or assigned to the lender and its assigns. In the case of
each Mortgage Loan secured by a hotel, the related Loan Documents contain
such provisions as are necessary and UCC Financing Statements have been
filed or submitted for filing as necessary, in each case, to perfect a
valid first priority security interest in the related revenues with
respect to such Mortgaged Property. An assignment of each UCC Financing
Statement relating to the Mortgage Loan has been delivered by Seller in
blank which the Purchaser or Trustee, as applicable, or designee is
authorized to complete and to file in the filing office in which such UCC
Financing Statement was filed. Each Mortgage Loan and the related Mortgage
(along with any security agreement and UCC Financing Statement), together
with applicable state law, contain customary and enforceable provisions
such as to render the rights and remedies of the holders thereof adequate
for the practical realization against the personal property described
above, and the principal benefits of the security intended to be provided
thereby; provided, if the related security agreement and/or UCC Financing
Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in favor
of the Trustee will be required to be prepared or delivered and instead,
the Seller shall take all actions as are necessary to cause the Trust to
be shown as the owner of the related Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in
rents or any other personal property to the extent that the possession or
control of such items or actions other than the filing of the UCC
Financing Statement as required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental assessments
or charges or water or sewer bills that prior to the Cut-off Date became
due and owing in respect of each related Mortgaged Property have been
paid, or if in dispute, an escrow of funds in an amount sufficient to
cover such payments has been established. Such taxes and assessments shall
not be considered delinquent or due and owing until the date on which
interest or penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments. In
the case of each Mortgage Loan, one or more engineering assessments which
included a physical visit and inspection of the Mortgaged Property were
performed by an independent engineering consultant firm and except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Master Servicer, the
related Mortgaged Property is, to the Seller's knowledge as of the Closing
Date, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material deferred
maintenance or other similar conditions, either (a) an escrow of funds was
required or a letter of credit was obtained in an amount equal to at least
125% of the amount estimated to effect the necessary repairs, or such
other amount as a prudent commercial lender would deem appropriate under
the circumstances sufficient to effect the necessary repairs or
maintenance or (b) such repairs and maintenance have been completed. As of
origination of such Mortgage Loan there was no proceeding pending, and
subsequent to such date, the Seller has no actual knowledge of, any
proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title
policy (or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each Mortgage
Loan), as of the date of the origination of each Mortgage Loan and to the
Seller's knowledge as of the Cut-off Date: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the
boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that
are insured against by the lender's title insurance referred to in
Paragraph (13) below or that do not materially and adversely affect the
value or marketability of such Mortgaged Property, and (b) no improvements
on adjoining properties materially encroached upon such Mortgaged Property
so as to materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured against by
the lender's title insurance referred to in Paragraph (13) below.
(13) Title Insurance. The Seller has received an ALTA lender's title
insurance policy or an equivalent form of lender's title insurance policy
(or if such policy is not yet issued, such insurance may be evidenced by a
"marked up" pro forma policy or title commitment, in either case marked as
binding and countersigned by the title insurer or its authorized agent
either on its face or by an acknowledged closing instruction or escrow
letter) as adopted in the applicable jurisdiction (the "Title Insurance
Policy"), which was issued by a title insurance company qualified to do
business in the jurisdiction where the applicable Mortgaged Property is
located to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of such
Mortgage Loan and its successors and assigns (as sole insureds) that the
related Mortgage is a valid first lien in the original principal amount of
the related Mortgage Loan on the Mortgagor's fee simple interest (or, if
applicable, leasehold interest) in such Mortgaged Property comprised of
real estate, subject only to the Title Exceptions. Such Title Insurance
Policy was issued in connection with the origination of the related
Mortgage Loan. No claims have been made under such Title Insurance Policy.
Such Title Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums thereon
have been paid. Immediately following the transfer and assignment of the
related Mortgage Loan to the Trustee (including endorsement and delivery
of the related Mortgage Note to the Purchaser), such Title Insurance
Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Purchaser and its successors and
assigns without consent or notice to the title insurer. The Seller has not
done, by act or omission, anything that would impair the coverage under
such Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is
not available), (a) access to a public road, (b) that there are no
encroachments of any part of the building thereon over easements, and (c)
that the area shown on the survey is the same as the property legally
described in the related Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage required
under each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located. Each Mortgaged Property was covered by a fire and
extended perils included under the classification "All Risk of Physical
Loss" insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance
and does not permit reduction in insurance proceeds for depreciation. Each
Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption or rent loss insurance policy providing coverage for at least
twelve (12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months of
rental income). If any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such
Mortgage Loan, in an area identified in the Federal Register by the Flood
Emergency Management Agency as a special flood hazard area (Zone A or Zone
V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the maximum
amount of insurance available under the applicable National Flood
Insurance Administration Program. Each Mortgaged Property and all
improvements thereon are also covered by comprehensive general liability
insurance in such amounts as are generally required by reasonably prudent
commercial lenders for similar properties; if any Mortgaged Property is
located in the state of California or in a "seismic zone" 3 or 4, a
seismic assessment was conducted (except in the case of mobile home parks)
at the time of originations and seismic insurance was obtained to the
extent such Mortgaged Property has a PML of greater than twenty percent
(20%) calculated using at least a 450 a year look back with a 10%
probability of exceedance in a 50 year period; all properties in Florida
and within 25 miles of the coast of Texas, Louisiana, Mississippi,
Alabama, Georgia, North Carolina and South Carolina have windstorm
insurance; any nonconformity with applicable zoning laws and ordinances
(1) is not a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the event of
casualty or destruction, may be restored or repaired to materially the
same extent of the use or structure at the time of such casualty, (3) is
covered by law and ordinance insurance in an amount customarily required
by reasonably prudent commercial or multifamily, as applicable, mortgage
lenders, (4) is covered by a zoning endorsement covering any loss to the
mortgagee resulting from such non-conformity or (5) is covered by
insurance that will provide proceeds that, together with the value of the
related land, will be sufficient to repay the Mortgage Loan; and
additionally, for any Mortgage Loan having a Cut-off Date Balance equal to
or greater than $20,000,000, the insurer for all of the required coverages
set forth herein has a claims paying ability rating from Standard &
Poor's, Moody's or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At origination,
and to the Seller's knowledge as of the Closing Date, such insurance was,
or is, as applicable, in full force and effect with respect to each
related Mortgaged Property and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller;
and except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the related
Loan Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse the
proceeds as the repair or restoration progresses, other than with respect
to amounts that are customarily acceptable to commercial and multifamily
mortgage lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan. The insurer with respect to each
policy is qualified to write insurance in the relevant jurisdiction to the
extent required. All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not terminable
(nor may the amount of coverage provided thereunder be reduced) without 30
days' prior written notice to the mortgagee (or, with respect to
non-payment, 10 days' prior written notice to the mortgagee) or such
lesser period as prescribed by applicable law; and no such notice has been
received, including any notice of nonpayment of premiums, that has not
been cured. With respect to each Mortgage Loan, the related Mortgage
requires that the related Borrower or a tenant of such Borrower maintain
insurance as described above or permits the mortgagee to require insurance
as described above. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender after September 11,
2001 or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, for each
Mortgage Loan, (A) the related all risk property casualty insurance policy
and business interruption policy do not exclude acts of terrorism, or any
related damage claims or (B) Borrower has obtained insurance satisfying
the above coverage requirements against damage and business interruption
resulting from acts of terrorism, from coverage as of the later of (i) the
date of origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that any
right to require such coverage may be limited by commercially reasonable
availability. The Mortgage for each Mortgage Loan provides that proceeds
paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the
related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due
under the Mortgage Loan; and provided, further, that, if the related
Borrower holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the related
Ground Lease (as defined in Paragraph (44) below).
(15) No Material Defaults. Other than payments due but not yet 30
days or more delinquent (A) there exists no material default, breach,
violation or event of acceleration under the related Loan Documents and
(B) since the date of origination of such Mortgage Loan, there has been no
declaration by the Seller or prior holder of such Mortgage Loan of an
event of acceleration under the related Loan Documents, and (C) to
Seller's actual knowledge no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration under any of
such documents has occurred and is continuing; the Seller has not waived
any material default, breach, violation or event of acceleration under any
of such documents; and under the terms of each Mortgage Loan, each related
Mortgage Note, each related Mortgage and the other Loan Documents in the
related Mortgage File, no person or party other than the mortgagee may
declare an event of default or accelerate the related indebtedness under
the Loan Documents; provided, however, that this representation and
warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to the
subject matter otherwise covered by any other representation and warranty
made by the Seller in this Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months) has not been, 30 days or more past
due in respect of any Monthly Payment without giving effect to any
applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the holder of
the Mortgage Note, each related Mortgaged Property to secure any other
promissory note or obligation, other than another Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulations 1.860G-2(f)(2) that
treats a defective obligation as a qualified mortgage, or any
substantially similar successor provision) and the related Mortgaged
Property, if acquired by a REMIC in connection with the default or
imminent default of such Mortgage Loan, would constitute "foreclosure
property" within the meaning of Section 860G(a)(8), assuming compliance
with all of the requirements of a "foreclosure property" under Section
856(e)(4) by the Trustee, the Master Servicer, the Special Servicer, as
applicable, and their respective agents, but without regard to the holding
period requirements set forth in Section 856(e)(2). Prepayment Premiums
and yield maintenance charges payable with respect to each Mortgage Loan,
if any, constitute "customary prepayment penalties" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more environmental site
assessments meeting the requirements of the American Society for Testing
and Materials in effect at the time the related report was or the related
reports were prepared covering all environmental hazards typically
assessed for similar properties including use, type and tenants of the
Mortgaged Property (an "Environmental Report"), or an update of such an
assessment, was performed by an experienced licensed (to the extent
required by applicable state law) environmental consulting firm with
respect to each Mortgaged Property securing a Mortgage Loan in connection
with the origination of such Mortgage Loan and thereafter updated such
that, (a) such Environmental Report is dated no earlier than twelve months
prior to the Closing Date, (b) a copy of each such Environmental Report
has been delivered to the Purchaser; and (c) either: (i) no such
Environmental Report provides that as of the date of the report there is a
material violation of any applicable environmental laws with respect to
any circumstances or conditions relating to the related Mortgaged
Property; or (ii) if any such Environmental Report does reveal any such
circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material
respects, then one or more of the following are true--(A) a party not
related to the related Mortgagor with financial resources reasonably
adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or circumstance,
(B) the related Mortgagor was required to provide additional security
adequate to cure the subject violation in all material respects and to
obtain an operations and maintenance plan, (C) such conditions or
circumstances were investigated further and based upon such additional
investigation, an independent environmental consultant recommended no
further investigation or remediation, or recommended only the
implementation of an operations and maintenance program, which the
Mortgagor is required to do, (D) there exists an escrow of funds
reasonably estimated to be sufficient for purposes of effecting such
remediation, (E) the related Mortgaged Property is insured under a policy
of insurance against losses arising from such circumstances and
conditions, (F) the circumstance or condition has been fully remediated,
(G) the related Mortgagor provided a "no further action" letter or other
evidence acceptable to the Seller and that would be acceptable to a
reasonably prudent lender, that applicable federal, state or local
governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or
circumstance, (H) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is the lesser of (a) 2% of the
outstanding principal balance of the related Mortgage Loan and (b)
$200,000, (I) the related Mortgagor or another responsible party is
currently taking such actions, if any, with respect to such circumstances
or conditions as have been required by the applicable governmental
regulatory authority, or (J) a responsible party with financial resources
reasonably adequate to cure the violation provided a guaranty or indemnity
to the related Mortgagor to cover the costs of any required investigation,
testing, monitoring or remediation. To the Seller's actual knowledge and
without inquiry beyond the related Environmental Report, there are no
significant or material circumstances or conditions with respect to any
Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Mortgagor questionnaire delivered to Seller at the
issue of any related environmental insurance policy, if applicable, that
render such Mortgaged Property in material violation of any applicable
environmental laws. The Mortgage, or other Loan Document in the Mortgage
File, for each Mortgage Loan encumbering the Mortgaged Property requires
the related Mortgagor to comply and cause the Mortgaged Property to comply
with all applicable federal, state and local environmental laws and
regulations. The Seller has not taken any action which would cause the
Mortgaged Property not to be in compliance with all federal, state and
local laws pertaining to environmental hazards or which could subject the
Seller or its successors and assigns to liability under such laws. Each
Mortgagor represents and warrants in the related Loan Documents generally
to the effect that except as set forth in certain specified environmental
reports and to the best of its knowledge that as of the date of
origination of such Mortgage Loan, there were no hazardous materials on
the related Mortgaged Property, and that the Mortgagor will not use, cause
or permit to exist on the related Mortgaged Property any hazardous
materials, in any manner which violates federal, state or local laws,
ordinances, regulations, orders, directives, or policies governing the
use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller and its successors and assigns harmless from and against,
or otherwise be liable for, any and all losses resulting from a breach of
environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan, generally including any
and all losses, liabilities, damages, injuries, penalties, fines, expenses
and claims of any kind or nature whatsoever (including without limitation,
attorneys' fees and expenses) paid, incurred or suffered by or asserted
against, any such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if customary, non-judicial foreclosure,
subject to the effects of bankruptcy or similar law affecting the right of
creditors and the application of principles of equity, and there is no
exemption available to the Mortgagor which would interfere with such right
to foreclose except any statutory right of redemption or as may be limited
by anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(21) Bankruptcy. No Mortgaged Property, nor any material portion
thereof, is the subject of and no Mortgagor is a debtor in any state or
federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. No Mortgage Loan contains any equity
participation by the mortgagee thereunder, is convertible by its terms
into an equity ownership interest in the related Mortgaged Property or the
related Mortgagor, has a shared appreciation feature, provides for any
contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or provides for interest-only
payments without principal amortization or for the negative amortization
of interest, except that, in the case of an ARD Loan, such Mortgage Loan
provides that, during the period commencing on or about the related
Anticipated Repayment Date and continuing until such Mortgage Loan is paid
in full, (a) additional interest shall accrue and may be compounded
monthly and shall be payable only after the outstanding principal of such
Mortgage Loan is paid in full, and (b) subject to available funds, a
portion of the cash flow generated by such Mortgaged Property will be
applied each month to pay down the principal balance thereof in addition
to the principal portion of the related Monthly Payment. Neither the
Seller nor any affiliate thereof has any obligation to make any capital
contribution to the Mortgagor under the Mortgage Loan or otherwise nor
holds any equity interest in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does not
permit the related Mortgaged Property or any interest therein, including
any ownership interest in the Mortgagor, to be encumbered by any mortgage
lien or other encumbrance except the related Mortgage or the Mortgage of
another Mortgage Loan without the prior written consent of the holder
thereof. To Seller's knowledge, as of origination, and, to the Seller's
actual knowledge as of the Closing Date, except for cases involving other
Mortgage Loans, none of the Mortgaged Properties securing the Mortgage
Loans is encumbered by any mortgage liens junior to or of equal priority
with the liens of the related Mortgage. The Loan Documents require the
Mortgagor to pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal fees
and expenses and any applicable Rating Agency fees. The Loan Documents
contain a "due on sale" clause, which provides for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan if, without
the prior written consent of the holder of the Mortgage, either the
related Mortgaged Property, or any direct equity interest in the related
Mortgagor, is directly or indirectly pledged, transferred or sold, other
than by reason of family and estate planning transfers, transfers of less
than a controlling interest in the Mortgagor, issuance of non-controlling
new equity interests, transfers that are subject to the holder's approval
of transferee and satisfaction of certain conditions specified in the Loan
Documents, transfers to an affiliate meeting the requirements of the
Mortgage Loan, transfers among existing members, partners or shareholders
in the Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgaged Loans or multi-property Mortgage Loans or
transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied, impaired,
canceled, subordinated or rescinded in any material respect, except
pursuant to a written instrument duly submitted for recordation, to the
extent required, and specifically included in the related Mortgage Loan
File. No alterations, waivers, modifications or assumptions of any kind
have been given, made or consented to by or on behalf of the Seller since
September 21, 2004. The Seller has not taken any intentional action that
would cause the representations and warranties of the related Mortgagor
under the Mortgage Loan not to be true and correct in any material
respect.
(25) Inspection. Each related Mortgaged Property was inspected by or
on behalf of the related originator within the 12 months prior to the
Closing Date.
(26) Releases of Mortgaged Property. Since origination, no portion
of the related Mortgaged Property has been released from the lien of the
related Mortgage, in any manner which materially and adversely affects the
value, use or operation of the Mortgage Loan or materially interferes with
the security intended to be provided by such Mortgage. The terms of the
related Mortgage do not provide for release of any material portion of the
Mortgaged Property from the lien of the Mortgage except (a) in
consideration of payment therefor equal to not less than 125% of the
related allocated loan amount of such Mortgaged Property specifically set
forth in the related Loan Documents, (b) upon payment in full of such
Mortgage Loan, (c) Mortgage Loans which permit defeasance by means of
substituting for the Mortgaged Property (or, in the case of a Mortgage
Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) "government securities" within the meaning of Treas.
Reg. Section 1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans in
accordance with their terms, (d) Mortgage Loans which permit the related
Mortgagor to substitute a replacement property subject to the satisfaction
of enumerated conditions that would be acceptable to a reasonably prudent
commercial or multifamily, as applicable, lender, but which do not include
the consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that was
not given any value in connection with either the initial underwriting or
appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that contains a
provision for any defeasance of mortgage collateral (a "Defeasance Loan"),
the related Mortgage Note, Mortgage or other related Loan Document
contained in the Mortgage File, provides that the defeasance option is not
exercisable prior to a date that is at least two (2) years following the
Closing Date and is otherwise in compliance with applicable statutes,
rules and regulations governing REMICs; requires prior written notice to
the holder of the Mortgage Loan of the exercise of the defeasance option
and payment by Mortgagor of all related fees, costs and expenses as set
forth below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a single-purpose
entity; and requires delivery of a legal opinion that the Trustee has a
perfected security interest in such collateral prior to any other claim or
interest. In addition, each Mortgage loan that is a Defeasance Loan
permits defeasance only with substitute collateral constituting
"government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note (or the portion thereof being defeased) when due,
and in the case of ARD Loans, assuming the Anticipated Repayment Date is
the Stated Maturity Date. Further, the Mortgage or other related Loan
Document contained in the Mortgage File requires that an independent
certified public accountant certify that such government securities are
sufficient to make all such scheduled payments when due. To Seller's
actual knowledge, defeasance under the Mortgage Loan is only for the
purpose of facilitating the release of the Mortgaged Property and not as a
part of an arrangement to collateralize a REMIC with obligations that are
not real estate mortgages. With respect to each Defeasance Loan, the
related Mortgage or other related Loan Document provides that the related
Mortgagor shall (or permits the mortgagee to require the Mortgagor to) (a)
pay all Rating Agency fees associated with defeasance (if Rating Agency
approval is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not limited
to, accountant's fees and opinions of counsel, or (b) provide all opinions
reasonably required by the mortgagee under the related Loan Documents,
including, if applicable, a REMIC opinion and a perfection opinion and any
applicable rating agency letters confirming no downgrade or qualification
of ratings on any classes in the transaction. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the Mortgage Loan or the related documents require (or permit
the mortgagee to require) confirmation from the Rating Agency that
exercise of the defeasance option will not cause a downgrade or withdrawal
of the rating assigned to any securities backed by the Mortgage Loan and
require (or permit the mortgagee to require) the Mortgagor to pay any
Rating Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or Improvements. To
the Seller's knowledge as of the date of origination of such Mortgage
Loan, and, to the Seller's actual knowledge, as of the Cut-off Date the
Mortgaged Property and the improvements located on or forming part of, and
the existing use of, each Mortgaged Property securing a Mortgage Loan was
or are, as applicable, in material compliance with all applicable zoning
laws including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy thereof or
constitute a legal non-conforming use or structure (or, if any such
improvement does not so comply and does not constitute a legal
non-conforming use or structure, either law and ordinance insurance
coverage has been obtained in amounts adequate to avoid loss to the
mortgagee, or such non-compliance and failure does not materially and
adversely affect the value of the related Mortgaged Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an original
principal balance over $5,000,000 requires the Mortgagor to be for at
least for so long as the Mortgage Loan is outstanding, and to Seller's
actual knowledge each Mortgagor is, a Single-Purpose Entity. For this
purpose, "Single-Purpose Entity" means a person, other than an individual,
whose organizational documents provide, or which entity represented and
covenanted in the related Loan Documents, substantially to the effect that
such Mortgagor (i) is formed or organized solely for the purpose of owning
and operating the related Mortgaged Property or Properties; (ii) does not
engage in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any material
assets other than those related to its interest in such Mortgaged Property
or Properties or the financing thereof; (iv) does not and will not have
any indebtedness other than as permitted by the related Mortgage or other
related Loan Documents; (v) maintains its own books, records and accounts,
in each case which are separate and apart from the books, records and
accounts of any other person; and (vi) holds itself out as being a legal
entity, separate and apart from any other person. In addition, with
respect to all Mortgage Loans with an original principal balance of
$15,000,000 or more, the Mortgagor's organizational documents provide
substantially to the effect that the Mortgagor shall: observe all entity
level formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other person; not
commingle its assets or funds with those of any other person; prepare
separate tax returns and financial statements, or if part of a
consolidated group, be shown as a separate member of such group; transact
business with affiliates on an arm's length basis pursuant to written
agreements; hold itself out as being a legal entity, separate and apart
from any other person and such organizational documents provide that: any
dissolution or winding up or insolvency filing for such entity is
prohibited or requires the unanimous consent of an independent director or
member or all partners or members, as applicable; such documents may not
be amended with respect to the Single-Purpose Entity requirements without
the approval of the mortgagee or rating agencies; and the Mortgagor shall
have an outside independent director or member. The Mortgage File for each
such Mortgage Loan having an original principal balance of $20,000,000 or
more contains a counsel's opinion regarding non-consolidation of the
Mortgagor in any insolvency proceeding involving its equity owner or group
of equity owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the requirements
of the related Mortgage Loan and Mortgage and the Mortgagor's
organizational documents regarding Single-Purpose-Entity status. The
organization documents of any Mortgagor on a Mortgage Loan having an
original principal balance of $15,000,000 or more which is a single member
limited liability company provide that the Mortgagor shall not dissolve or
liquidate upon the bankruptcy, dissolution, liquidation or death of the
sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor and,
to the Seller's knowledge, no funds have been received from any person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge, as of
origination there were no, and to the Seller's actual knowledge, as of the
Closing Date, there are no, pending actions, suits, litigation,
arbitration or other proceedings by or before any court, arbitrator or
governmental authority against the Mortgagor (or any related guarantor to
the extent the Seller would consider such guarantor material to the
underwriting or such Mortgage Loan) under any Mortgage Loan or the related
Mortgaged Property that could reasonably be expected to materially and
adversely affect the value of the Mortgaged Property as security for such
Mortgage Loan, the Mortgagor's ability to pay principal, interest or any
other amounts due under such Mortgage Loan or such guarantor's ability to
meet its obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default interest,
late charges or prepayment premiums) of such Mortgage Loan (other than an
ARD Loan after the Anticipated Repayment Date) is a fixed rate, and
complied as of the date of origination with, or was exempt from,
applicable state or federal laws, regulations and other requirements
pertaining to usury.
(34) Trustee Under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage
and applicable law, and (b) no fees or expenses are payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or
in connection with any full or partial release of the related Mortgaged
Property or related security for such Mortgage Loan and all such fees and
expenses are the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related Mortgage
Note is not secured by any collateral that secures a Mortgage Loan that is
not in the Trust Fund and each Mortgage Loan that is cross-collateralized
is cross-collateralized only with other Mortgage Loans sold pursuant to
this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments required
pursuant to the Loan Documents are in the possession, or under the
control, of the Seller or its agent and there are no deficiencies in
connection therewith, and all such escrows, deposits and payments will be
conveyed by the applicable Seller to the Purchaser and identified as such
with appropriate detail on the Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the related
Mortgagor, to the extent required by law, to be qualified to do business,
and requires the related Mortgagor and the related Mortgaged Property to
be in material compliance with all regulations, licenses, permits,
authorizations, restrictive covenants and zoning and building laws, in
each case to the extent required by law or to the extent that the failure
to be so qualified or in compliance would have a material and adverse
effect upon the enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the Seller's
knowledge, as of the date of origination of each Mortgage Loan based on
any of: (i) a letter from governmental authorities, (ii) a legal opinion,
(iii) an endorsement to the related Title Insurance Policy, (iv) a zoning
report from a zoning consultant, or (v) other due diligence that the
originator of the Mortgage Loan customarily performs in the origination of
comparable mortgage loans, and to the Seller's actual knowledge as of the
Closing Date, the related Mortgagor was in possession of all material
licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses and permits have otherwise been issued.
(39) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and the
servicing practices used by the Seller and its affiliates or contractors
engaged by it with respect to the Mortgage Loan have been in all respects
legal and have met customary standards utilized by prudent commercial or
multifamily, as applicable, lenders and servicers.
(40) Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is non-recourse,
except that the Mortgagor and either: a principal of the Mortgagor or
other natural person, with assets other than any interest in the
Mortgagor, has agreed to be jointly and severally liable for all
liabilities, expenses, losses, damages, expenses or claims suffered or
incurred by the holder of the Mortgage Loan by reason of or in connection
with: (i) any fraud or material misrepresentation by the Mortgagor, (ii)
misapplication or misappropriation of rents, insurance proceeds or
condemnation awards or (iii) violation of applicable environmental laws or
breaches of environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any such
guarantor or principal by the Seller or anyone acting on behalf of the
Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes one
or more separate tax lots (or will constitute separate tax lots when the
next tax maps are issued), or, in certain instances, an application has
been made to the applicable governing authority for creation of separate
tax lots that shall be effective for the next tax year (and, with respect
to tax parcels for which such application has been made, prior to the
creation of such separate tax lots, taxes are being escrowed for the
entire existing tax parcel), or is subject to an endorsement under the
related Title Insurance Policy insuring for losses arising from any claim
that the Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan Documents
requires the Mortgagor upon request to provide the owner or holder of the
Mortgage with quarterly (except for Mortgage Loans with an original
principal balance less than $3,000,000) and annual operating statements
(or a balance sheet statement of income and expenses and a statement of
changes in financial position), and such additional information regarding
the Mortgagor and the Mortgaged Property as the owner or holder of the
Mortgage may request which annual financial statements for all Mortgage
Loans with an original principal balance greater than $20 million shall be
audited by an independent certified public accountant upon the request of
the holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured by the
fee interest in the related Mortgaged Property, except that with respect
to Mortgage Loans that are secured by the interest of the related
Mortgagor as a lessee under a ground lease of a Mortgaged Property (a
"Ground Lease") (the term Ground Lease shall mean such ground lease, all
written amendments and modifications, and any related estoppels or
agreements from the ground lessor and, in the event the Mortgagor's
interest is a ground subleasehold, shall also include not only such ground
sublease but also the related ground lease), but not by the related fee
interest in such Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee,
its successors or assigns, in a manner that would materially
adversely affect the security provided by the related Mortgage; and
there has been no material change in the terms of such Ground Lease
since its recordation, with the exception of written instruments
which are a part of the related Mortgage File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Title Exceptions,
and provides that it shall remain prior to any mortgage or other
lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the mortgagee and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(d) Such Ground Lease is in full force and effect, and the
Seller has not received as of the Closing Date notice (nor is the
Seller otherwise aware) that any default has occurred under such
Ground Lease;
(e) Seller or its agent has provided the lessor under the
Ground Lease with notice of its lien, and such Ground Lease requires
the lessor to give notice of any default by the lessee to the
mortgagee, and such Ground Lease, or an estoppel letter received by
the mortgagee from the lessor, further provides that no notice of
termination given under such Ground Lease is effective against such
mortgagee unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time
to gain possession of the interest of the lessee under such Ground
Lease) to cure any default under such Ground Lease, which is curable
after the receipt of written notice of any such default, before the
lessor thereunder may terminate such Ground Lease, and all of the
rights of the mortgagor under such Ground Lease and the related
Mortgage (insofar as it relates to the Ground Lease) may be
exercised by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one or
more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the Seller and its successors
and assigns) which extends not less than the greater of 10 years
beyond the amortization term and 20 years beyond the Stated Maturity
Date for the related Mortgage Loan (or, with respect to any Mortgage
Loan with an Anticipated Repayment Date, 10 years beyond the
amortization term);
(h) Such Ground Lease requires the lessor to enter into a new
lease with the mortgagee under such Mortgage Loan upon termination
of such Ground Lease for any reason, including rejection of such
Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Loan
Documents, taken together, any related insurance proceeds or
condemnation award that is awarded with respect to the leasehold
interest will be applied either (i) to the repair or restoration of
all or part of the related Mortgaged Property, with the mortgagee
under such Mortgage Loan or a trustee appointed by it having the
right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued
interest thereon;
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the absence
of an uncured default, to disturb the possession, interest or quiet
enjoyment of any lessee in the relevant portion of the Mortgaged
Property subject to such Ground Lease for any reason, or in any
manner, which would materially adversely affect the security
provided by the related Mortgage;
(k) Such Ground Lease may not be amended or modified without
the prior consent of the mortgagee under such Mortgage Loan and that
any such action without such consent is not binding on such
mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or rescinded
in any manner which materially interferes with the security intended
to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage Loans
secured by Ground Leases, each of the Mortgagors (or its affiliates) has
title in the fee simple interest in each related Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal; if any ARD Loan is not paid in full by its Anticipated
Repayment Date, and assuming that it is not otherwise in default, the rate
at which such Mortgage Loan accrues interest will increase to the sum of
the original Mortgage Rate and a specified margin not less than 2 percent
(2%); the Anticipated Repayment Date of any such Mortgage Loan is not less
than 7 years from the date of origination; and after the Anticipated
Repayment Date, the Loan Documents provide that excess cash flow after
payment of expenses, including scheduled interest and capital expenditures
approved by the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. To the extent required under
applicable law as of the date of origination, and necessary for the
enforceability or collectability of the Mortgage Loan, the originator of
such Mortgage Loan was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located at all times when it
originated and held the Mortgage Loan.
(48) No Negative Amortization; No Capital Contribution; No Financing
for Incomplete Improvements. No Mortgage Loan, other than an ARD Loan (and
then only after the Anticipated Repayment Date for such ARD Loan),
provides for the negative amortization of interest. Neither the Seller nor
any affiliate thereof has any obligation to make any capital contributions
to the Mortgagor under the Mortgage Loan. The Mortgage Loan was not
originated for the purpose of financing the construction of incomplete
improvements on the related Mortgaged Property other than tenant
improvements.
(49) No Fraud. Neither the Seller, the originator, nor any employee
or agent of the Seller or the originator has participated in any fraud or
intentional material misrepresentation with respect to the Mortgagor, the
Mortgaged Property or any guarantor. To Seller's actual knowledge, no
Mortgagor or guarantor is guilty of defrauding or making an intentional
material misrepresentation to the Seller with respect to the origination
of the Mortgage Loan, the Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note provides a
grace period for delinquent Monthly Payments no longer than 10 days from
the applicable Due Date other than as disclosed in the Mortgage Loan
Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Seller's knowledge, had no interest, direct or indirect, in
the Mortgaged Property or the Mortgagor or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan; the appraisal or a supplemental
letter from the appraiser states that the appraisal satisfies the
appraisal guidelines set forth in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 (as amended), all as in
effect on the date the Mortgage Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the Prospectus
Supplement, (a) no Mortgagor is the Mortgagor with respect to more than
one Mortgage Loan and (b) to the Seller's knowledge, no group of Mortgage
Loans with affiliated mortgagors have an aggregate principal balance
equaling more than $78,987,740.
(53) Environmental Insurance Policies. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor environmental
insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or otherwise to
the insurer under such policy the "pollution conditions" (as
defined in such policy) identified in any environmental
reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to the
insurer under such policy copies of all environmental reports
in the Seller's possession related to such Mortgaged Property,
in each case with respect to (i) and (ii) to the extent
required by such policy or to the extent the failure to make
any such disclosure or deliver any such report would
materially and adversely affect the Purchaser's ability to
recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of the
Mortgage Loan (or 5 years beyond the Anticipated Repayment Date with
respect to an ARD Loan) and is not cancelable during such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and the
environmental insurance for such Mortgage Loan is not a secured
creditor policy but was required to be obtained by the Mortgagor,
then the holder of the Mortgage Loan is entitled to be an additional
insured under such policy, all premiums have been paid, such
insurance is in full force and effect, such policy may not be
cancelled or amended without the consent of the Seller or its
successors and assigns and, to the Seller's knowledge, the Mortgagor
has made the disclosures and complied with the requirements of
clauses (a) and (b) of this Paragraph (53).
(54) Access. The Mortgaged Property is located on or adjacent to a
public road, or has access to an irrevocable easement permitting ingress
and egress.
SCHEDULE IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Exhibit C to the
Mortgage Loan Purchase Agreement. Underlined titles are provided for reference
only.
Annex A-1
ID # Mortgage Loan Exception
Exceptions to Representation (12): Condition of Property; No Condemnation; No
Encroachments.
96 Rentar Plaza In the property condition report, various
recommendations for repairs to the
Mortgaged Property were set forth.
Pursuant to the terms of a post-closing
obligations letter, the borrower agreed
to use commercially reasonable efforts
to, within 120 days after the date of
closing, comply with the recommendations
with respect to "Short Term" and
"Immediate Term" items set forth in such
property condition report.
Exceptions to Representation (14): Insurance.
95 Charles Square The Charles Square Mortgage Loan
documents do not require that insurance
policies prohibit a reduction in
insurance proceeds for depreciation.
The Charles Square Mortgage Loan
documents provide that so long as the
Terrorism Risk Insurance Act of 2002
(TRIA) or a similar statute is in effect,
the borrower is required to carry
terrorism insurance in an amount (the
"Initial Terrorism Coverage Amount")
equal to the lesser of the principal
amount and the full replacement cost of
the Mortgaged Property. If TRIA or a
similar statute is not in effect, then
provided that terrorism insurance is
commercially available, the borrower
shall be required to carry terrorism
insurance throughout the term of the
Charles Square Mortgage Loan in an amount
not less than the lesser of (a) the
Initial Terrorism Coverage Amount and (b)
the amount of coverage that can be
purchased at an annual premium of
$350,000. If terrorism insurance is
required and any property insurance
policy covering the Mortgaged Property
provides for any exclusions of coverage
for acts of terrorism, then a separate
terrorism insurance policy in the
coverage amount required under the
Mortgage Loan documents, and in form and
substance acceptable to lender, is
required to be obtained by the borrower
for the Mortgaged Property. Terrorism
insurance coverage may be provided under
a blanket policy that is acceptable to
lender.
96 Rentar Plaza The related mortgage loan documents do
not require that insurance policies
prohibit a reduction in insurance
proceeds for depreciation.
The Rentar Plaza Mortgage Loan documents
provide that so long as the Terrorism
Risk Insurance Act of 2002 ("TRIA") or a
similar statute is in effect, the
borrower shall be required to carry
Terrorism Insurance in an amount (the
"Terrorism Insurance Amount") not less
than the lesser of (x) the outstanding
principal balance of the Mortgage Loan
and (y) the insurable value of the
Mortgaged Property, as reasonably
determined by the lender plus rental loss
or business interruption insurance in an
amount equal to the greater of (I)
estimated rents from the operations of
the Mortgaged Property for the actual
time period required to complete any
restoration with an eighteen (18) month
extended period of indemnity or (II) the
projected operating expenses (including
debt service) for the maintenance and
operation of the Mortgaged Property for
the actual time period required to
complete any restoration with an eighteen
(18) month extended period of indemnity.
If TRIA or a similar statute is not in
effect, then provided that Terrorism
Insurance is commercially available, the
borrower shall be required to carry
Terrorism Insurance throughout the term
of the Mortgage Loan in an amount not
less than the amount of coverage that can
be purchased for $450,000, but in no
event shall the borrower be required to
purchase coverage exceeding the Terrorism
Insurance Amount. If Terrorism Insurance
is required and any property insurance
policy covering the Mortgaged Property
provides for any exclusions of coverage
for acts of terrorism, then a separate
terrorism insurance policy in the
coverage amount required pursuant to the
Mortgage Loan documents, and in form and
substance acceptable to lender, is
required to be obtained by borrower for
the Mortgaged Property. Terrorism
Insurance coverage may be provided under
a blanket policy that is acceptable to
lender.
The Rentar Plaza Mortgage Loan agreement
allows for an insurer providing any
required coverage to have a rating from
A.M. Best of not less than A-.
Exceptions to Representation (19): Environmental Conditions.
96 Rentar Plaza In the property condition report, various
recommendations for repairs to the
Mortgaged Property were set forth.
Pursuant to the terms of a post-closing
obligations letter the borrower agreed to
use commercially reasonable efforts to,
within 120 days after the date of
closing, comply with the recommendations
set forth in such report.
Exceptions to Representation (21): Bankruptcy.
Various Various Certain tenants at certain Mortgaged
Properties may be the subject of a
bankruptcy or insolvency proceeding.
Exceptions to Representation (22): Whole Loan; Interest Only; No Equity
Participation or Contingent Interest.
1 Ocean Residences The related Mortgage Loan requires
payments of interest only through the
maturity date of such Mortgage Loan.
13 Country Club Ridge The related Mortgage Loan requires
payments of interest only for the first
60 months of the term of such Mortgage
Loan, with payments of principal and
interest due thereafter through the
maturity date of such Mortgage Loan.
20 Congressional Village The related Mortgage Loan requires
payments of interest only for the first
12 months of the term of such Mortgage
Loan, with payments of principal and
interest due thereafter through the
maturity date of such Mortgage Loan.
21 Jefferson at The related Mortgage Loan requires
Congressional (Land) payments of interest only for the first
12 months of the term of such Mortgage
Loan, with payments of principal and
interest due thereafter through the
maturity date of such Mortgage Loan.
47 Dutch Village The related Mortgage Loan requires
payments of interest only for the first
12 months of the term of such Mortgage
Loan, with payments of principal and
interest due thereafter through the
maturity date of such Mortgage Loan.
53 Corporate Center The related Mortgage Loan requires
payments of interest only for the first
12 months of the term of such Mortgage
Loan, with payments of principal and
interest due thereafter through the
maturity date of such Mortgage Loan.
95 Charles Square The related Mortgage Loan requires
payments of interest only for the first
24 months of the term of such Mortgage
Loan, with payments of principal and
interest due thereafter through the
maturity date of such Mortgage Loan.
96 Rentar Plaza The related Mortgage Loan requires
payments of interest only through the
maturity date of such Mortgage Loan.
Exceptions to Representation (23): Transfers and Subordinate Debt.
1 Ocean Residences 100% of the interests in the borrower
have been pledged to GACC to secure a
senior mezzanine loan in the amount of
$40,000,000 and 100% of the interests in
the borrower under the senior mezzanine
loan have been pledged to GACC to secure
a junior mezzanine loan in the amount of
$20,000,000.
13 Country Club Ridge The related borrower is permitted to
incur additional, unsecured debt to be
used for capital improvements or
shortfalls in operating income, subject
to the satisfaction of certain
conditions, including (i) borrower
provides to the lender an acceptable
intercreditor agreement, (ii) the
borrower provides confirmation from the
rating agencies that such subordinate
debt will not cause a negative change to
the ratings applicable to any outstanding
securities related to the Mortgage Loan,
(iii) such subordinate debt may not
exceed $1,000,000, (iv) amounts payable
under such subordinate note may only be
collected to the extent that there is net
cash flow available from the income
generated from the Mortgaged Property
after payments required under the
Mortgage Loan and (v) such subordinate
debt is fully subordinate the Mortgage
Loan. In addition, the lender of such
subordinate debt must agree that it will
not, in a bankruptcy proceeding involving
the borrower, vote in favor of any plan
of reorganization in favor of which the
lender has not voted.
53 Corporate Center Up to 75% of the direct or indirect
interests in the related borrower may be
transferred to an institutional investor
and such institutional investor may
exercise joint control of the related
borrower after such transfer.
95 Charles Square Contemporaneously with the closing of the
Charles Square Mortgage Loan, the lender
made a mezzanine loan in the original
principal amount of $43,500,000 to the
sole-member of the borrower (the "Charles
Square Mezzanine Borrower"), and as
security for said loan the Charles Square
Mezzanine Borrower pledged all its
interest in the borrower to the mezzanine
lender.
The Charles Square Mortgage Loan permits
the initial borrower to sell the
Mortgaged Property to a single purpose
entity wholly owned by an educational
institution, pension fund, hotel
operator, life insurance company,
individual or trust having net assets in
excess of $1,000,000,000 ("Charles Square
Permitted Transferee"), subject to the
lien of the related mortgage, upon the
payment of a non-refundable assumption
fee equal to one half of one percent
(0.5%) of the principal amount (the
"Assumption Fee") and the delivery of
(i) a nonconsolidation opinion, (ii) a
rating agency confirmation, (iii)
evidence that the transferee is a
permitted transferee and (iv) evidence
that the transferee is or has engaged a
qualified manager.
The Charles Square Mortgage Loan provides
that transfers of controlling direct
equity interests in the borrower of more
than 49% are permissible provided that
(i) no event of default has occurred and
is continuing, (ii) the borrower pays to
lender the assumption fee; (iii) a rating
agency confirmation is delivered to
lender, (iv) the borrower delivers or
causes to be delivered to the rating
agencies and lender a nonconsolidation
opinion; (v) borrower shall remain a
single purpose entity; (vi) a qualifying
manager shall manage the Mortgaged
Property (or each component part
thereof); and (vii) the borrower shall
reimburse lender, on the date of such
transfer, for all costs and expenses,
including, without limitation, reasonable
attorney's fees and disbursements,
incurred or to be incurred by lender in
connection with such transfer.
An equity holder in the borrower is the
borrower under an unsecured subordinate
loan in the amount of $3,780,000. The
holder of such subordinate loan has
entered into a subordination and
standstill agreement with respect to such
loan.
Exceptions to Representation (24): Waivers and Modification.
1 Ocean Residences The definition of Terrorism Insurance
Amount, as set forth in the related
Mortgage Loan documents, was amended
pursuant to a letter agreement dated
October 15, 2004.
95 Charles Square The related Mortgage Loan documents were
amended pursuant to a First Amendment to
Loan Agreement and First Amendment to
Mezzanine Loan Agreement, each dated
October 8, 2004, two Amended and Restated
Indemnity Agreements, a First Amendment
to Note, a First Amendment to Mezzanine
Note, a First Amendment to Mortgage and
an Amended and Restated Intercreditor
Agreement, each of which are dated
November 17, 2004.
Exceptions to Representation (26): Releases of Mortgaged Property.
20, 21 Congressional Village; The related Mortgage Loans are
Jefferson at cross-collateralized. The borrower is
Congressional (Land) permitted to release one of the Mortgaged
Properties upon depositing with the
lender defeasance collateral equal to
115% of the amount of the Mortgage Loan
being released.
Exceptions to Representation (27): Defeasance.
Various Various Certain Mortgage Loans permit the
defeasance collateral to pay the loan in
full on the first date the Mortgage Loan
is freely prepayable instead of on the
maturity date.
Exceptions to Representation (32): Litigation or Other Proceedings.
95 Charles Square On February 5, 2004, a complaint was
filed against one of the entities
comprising the borrower alleging that the
Mortgaged Property was in certain
respects in violation of the Americans
with Disabilities Act ("ADA"). The ADA
complaint has been dropped pursuant to a
settlement agreement dated October 22,
2004. Nevertheless, the Mortgage Loan was
structured with a capital improvement
reserve account to be used to reimburse
the borrower or pay applicable
contractors, vendors and suppliers, as
the case may be, for the cost of
improvements related to the ADA
complaint. The Charles Square Mortgage
Loan documents require completion of any
ADA required improvements to the extent,
and within the time period, specified in
the settlement agreement.
Exception to Representation (41): Non-Recourse Exceptions.
13 Country Club Ridge The guarantor of the related Mortgage
Loan is not a natural person.
53 Corporate Center The guarantor of the related Mortgage
Loan is not a natural person.
Exception to Representation (43): Financial Statements.
96 Rentar Plaza The Rentar Plaza loan agreement allows
the borrower to deliver unaudited annual
financial statements. Such financial
statements, however, are required to be
reviewed by an independent certified
public accountant.
EXHIBIT 99.3
GECC Mortgage Loan Purchase and Sale Agreement
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of November 23, 2004, between General Electric Capital
Corporation, as seller (the "Seller" or "GECC"), and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule").
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, (ii) certain mortgage loans transferred by Bank of America, N.A.
("Bank of America") to the Purchaser pursuant to a mortgage loan purchase and
sale agreement, dated as of the date hereof between Bank of America and the
Purchaser and (iii) certain mortgage loans transferred by German American
Capital Corporation ("GACC") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between GACC and the
Purchaser, to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. and/or Moody's Investors
Service, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of November 1, 2004 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, N.A., as master servicer
(the "Master Servicer"), Lennar Partners, Inc., as special servicer (the
"Special Servicer"), and Wells Fargo Bank, N.A., as trustee (in such capacity,
the "Trustee") and REMIC administrator. Capitalized terms used but not otherwise
defined herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("BAS"), Deutsche Bank Securities Inc. ("Deutsche Bank"),
Citigroup Global Markets Inc. ("Citigroup"), Goldman, Sachs & Co. ("Goldman
Sachs") and J.P. Morgan Securities Inc. ("JPMorgan" and, collectively with BAS,
Deutsche Bank and Citigroup, the "Underwriters") pursuant to an underwriting
agreement, dated as of November 8, 2004 (the "Underwriting Agreement"). BACM
intends to sell certain of the remaining Classes of Certificates (the
"Non-Registered Certificates") to BAS and Deutsche Bank, as initial purchasers
(together, the "Initial Purchasers"), pursuant to a certificate purchase
agreement dated as of November 8, 2004 (the "Certificate Purchase Agreement").
The Registered Certificates are more fully described in the prospectus dated
November 8, 2004 (the "Basic Prospectus"), and the supplement to the Basic
Prospectus dated November 8, 2004 (the "Prospectus Supplement"; and, together
with the Basic Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The Non-Registered Certificates are more
fully described in three private placement memoranda, each dated November 8,
2004, the private placement memorandum (the "Private Placement Memorandum"),
relating to the Class XC, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates, the private
placement memorandum (the "Class CS Private Placement Memorandum"), relating to
the Class CS Certificates and the private placement memorandum (the "Class RP
Private Placement Memorandum" relating to the Class RP-1, Class RP-2, Class RP-3
and Class RP-4 Certificates and, together with the Private Placement Memorandum
and the Class CS Private Placement Memorandum, the "Memoranda") as they may be
amended or supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memoranda and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of November 8, 2004 (the
"Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters
and the Initial Purchasers and pursuant to a supplemental indemnification
agreement, dated as of November 8, 2004 (the "Supplemental Indemnification
Agreement"), among Bank of America, BACM and Seller.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be $399,689,746.18, which amount includes interest accrued on the Mortgage
Loans on or after the Cut-off Date and which amount shall be payable on or about
November 23, 2004 in immediately available funds. The Purchaser shall be
entitled to all interest accrued on the Mortgage Loans on and after the Cut-off
Date and all principal payments received on the Mortgage Loans after the Cut-off
Date except for principal and interest payments due and payable on the Mortgage
Loans on or before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, the Seller
shall deliver or cause to be delivered to the Purchaser or, if so directed by
the Purchaser, to the Trustee or a custodian designated by the Trustee (a
"Custodian"), the documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(e) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(c). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(c) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(c) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan countersigned by the related title company
or its authorized agent.
(f) Notwithstanding the foregoing, if any of the above-described
documents is not delivered with respect to any Mortgage Loan because such
document has been submitted for recording, and neither such document nor a copy
thereof, in either case with evidence of recording thereon, can be obtained
because of delays on the part of the applicable recording office, then the
Mortgage Loan Seller will not be required to repurchase (or cause the repurchase
of) the related affected Mortgage Loan on the basis of such missing document so
long as such Mortgage Loan Seller continues in good faith to attempt to obtain
such document or such copy. In the event that the Mortgage Loan Seller fails to
deliver the above-referenced documents for a period of 18 months, then the
Master Servicer and the Special Servicer will have the right to obtain such
above-referenced documents directly and to recover any costs and expenses from
the Mortgage Loan Seller (or from the Trust if the Mortgage Loan Seller fails to
reimburse the Master Servicer and the Special Servicer, as applicable, within 90
days; provided, however, that the Mortgage Loan Seller shall remain liable to
reimburse the Trust for any such costs and expenses).
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a corporation, duly authorized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II hereof (subject to any exceptions thereto listed on
Schedule IIA hereof ) to and for the benefit of the Purchaser as of the Closing
Date (or as of such other dates specifically provided in the particular
representation and warranty), with respect to (and solely with respect to) each
Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof and, if applicable, the terms of the
Pooling and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, any such Material Breach or Material Document Defect, as the case may
be, does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller may, at its option, in lieu of
repurchasing such Defective Mortgage Loan) (but, in any event, no later than
such repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Material
Breach or Material Document Defect, but if the Seller discovers a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-) days;
provided, however, that if the Seller did not receive written notice from
the Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event shall be deemed to have
occurred during such Initial Resolution Period and the immediately
preceding clause (iii) of this definition will be deemed to apply.
In addition, the applicable Seller shall have an additional 90 days
to cure such Material Document Defect or Material Beach, provided that the
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach and such failure to cure is solely the result
of a delay in the return of documents from the local filing or recording
authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Crossed-Collateralized Mortgage Loan and to each other Mortgaged
Property included in such portfolio and the Seller shall repurchase or
substitute for any related Crossed-Collateralized Mortgage Loan in the manner
described above unless, in the case of a Material Breach or Material Document
Defect, both of the following conditions would be satisfied if the Seller were
to repurchase or substitute for only the affected Crossed-Collateralized
Mortgage Loans or affected Mortgaged Properties as to which a Material Breach or
Material Document Defect had occurred without regard to this paragraph: (i) the
debt service coverage ratio for any remaining Cross-Collateralized Mortgage
Loans or Mortgaged Properties for the four calendar quarters immediately
preceding the repurchase or substitution is not less than the greater of (a) the
debt service coverage ratio immediately prior to the repurchase, (b) the debt
service coverage ratio on the Closing Date, and (c) 1.25x and (ii) the
loan-to-value ratio for any remaining Crossed-Collateralized Mortgage Loans or
Mortgaged Properties is not greater than the lesser of (a) the loan-to-value
ratio immediately prior to the repurchase, (b) the loan-to-value ratio on the
Closing Date, and (c) 75%. In the event that both of the conditions set forth in
the preceding sentence would be satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loan or Mortgaged Properties as to which the Material Breach or Material
Document Defect exists or to repurchase or substitute for the aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Loan or affected Mortgaged Property
or, in the case of a Cross-Collateralized Loan, to forbear from enforcing any
remedies against the other's Primary Collateral (as defined below), but each is
permitted to exercise remedies against the Primary Collateral securing its
respective affected Cross-Collateralized Mortgage Loans or Mortgaged Properties,
including, with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not impair the
ability of the other party to exercise its remedies against its Primary
Collateral. If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Cross-Collateralized Mortgage Loans or Mortgaged Properties held by
such party, then both parties shall forbear from exercising such remedies until
the related Mortgage Loan documents can be modified to remove the threat of
impairment as a result of the exercise of remedies. "Primary Collateral" shall
mean the Mortgaged Property directly securing a Cross-Collateralized Mortgage
Loan excluding, however, any Mortgaged Property as to which the related lien may
only be foreclosed upon by exercise of cross-collateralization of such loans.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto ), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
November 1, 2004, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the subject
Mortgage Loan, together with funds reasonably estimated by the Purchaser
to be necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) [Reserved].
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte & Touche LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Wickersham & Taft LLP, 227 West Trade
Street, Suite 2400, Charlotte, North Carolina 28202 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters, the Initial Purchasers and BACM may rely, attaching
thereto as exhibits the organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Delaware Secretary of State, dated not earlier than 30 days prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller, each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement and the Supplemental
Indemnification Agreement, duly executed by the respective parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any preliminary Prospectus Supplement, Prospectus Supplement and Memoranda
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memoranda stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, compared the results of
their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, and found
each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 214
North Tryon Street, NC1-027-21-02, Charlotte, North Carolina 28255, Attention:
Stephen Hogue, telecopy number: (704) 386-1094, with a copy to Paul E. Kurzeja,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 100 North
Tryon Street, 20th Floor, Charlotte, North Carolina 28255, or such other address
as may hereafter be furnished to the Seller in writing by the Purchaser; if to
the Seller, addressed to it at c/o General Electric Capital Corporation, 125
Park Avenue, 10th Floor, New York, New York 10017, Attention: Capital Markets /
Daniel Vinson, telecopy number: (212) 716-8960, with a copy to Patricia A.
Deluca, Esq., General Electric Capital Corporation, 292 Long Ridge Road,
Stamford, Connecticut, 06927, telecopy number (203) 357-6768, or to such other
addresses as may hereafter be furnished to the Purchaser by the Seller in
writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in this Agreement and
in the Pooling and Servicing Agreement and covering all the Mortgage Loans in
such Cross-Collateralized Group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan. "Cross-Collateralized Mortgage Loan"
shall mean any Mortgage Loan that is cross-collateralized and cross-defaulted
with one or more other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/
------------------------------------
Name: Daniel Vinson
Title: Authorized Signatory
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/
------------------------------------
Name: Nidhi Kapila
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Number Loan Number Loan Seller Property Name
--------------- ----------- ----------- ------------------------------------------
2.1 760032557 GERE Princeton Court Apartments
2.2 760032557 GERE Princeton Arms Apartments
2 760032557 GERE Princeton Arms & Court (Roll Up)
6 760032873 GERE Saddlebrook Apartments
8 760033071 GERE Huntington Apartments
11 760032702 GERE Quail Run / Southpointe
12 760032898 GERE Summit Place Apartments
13 760032111 GERE Cascades Apts - Phoenix, AZ
16 760033784 GERE Fairmeadow Apartments
17 760033033 GERE North Oak Apartments
18 760032429 GERE Brook Lyn Apartments
24 760033366 GERE Plaza 205
26 760033841 GERE Roswell Village
28 760032781 GERE Fredericksburg Westwood Center Retail
29 760033463 GERE Bluffton Commons
30 760032500 GERE Village of Woodland Hills
34 760032844 GERE Prescott Valley Shopping Center
39 760032563 GERE Park Place Shopping Center
40 760032538 GERE Arts Industria Building
41 760032349 GERE Brookhollow Village Shopping Center
47 760032273 GERE Smoky Hill Town Center Phase II
48 760032361 GERE Texas Station Shopping Center
49 760032371 GERE Beechnut
51.1 760032545 GERE 2115 Wisconsin Avenue, NW
51.2 760032545 GERE 1600 K Street, NW
51 760032545 GERE ICG Portfolio (Roll Up)
53 760032482 GERE Omega Corporate Center
59 760032106 GERE Riverview Plaza
60 760032704 GERE Truxtun Avenue
62 760033688 GERE 3100 Weslayan
64 760032628 GERE North County Corporate Center
67 760032489 GERE Commonwealth Commerces Center
68.1 760032401 GERE 10 Alvin Court
68.2 760032401 GERE 1 Kimberly Road
68 760032401 GERE 1 Kimberly Road & 10 Alvin Court (Roll Up)
69 760032649 GERE Rush Creek II
71 760032537 GERE Stor All - Tchoupitoulas
72 760032540 GERE Stor All - Gentilly
74 760032832 GERE Storage USA - Savi Ranch
76 760032543 GERE Malibu Self Storage
78 760032730 GERE Storage USA Waldorf
80 760032835 GERE Boulder Bins Self Storage
81 760032833 GERE American Self Storage
82 760032834 GERE Ross Valley Self Storage
83 760032660 GERE Summit Plaza Self Storage
84 760032929 GERE Storage USA - Tamarisk
85 760032235 GERE Power Self Storage
86 760032565 GERE Storage One at Tenaya
87 760032967 GERE Lockaway SS - Hollywood
88 760032181 GERE Storage Choice Sugar Land
89 760032179 GERE Storage Choice - Pearland
91 760033072 GERE Redline Self Storage
92 760032184 GERE Storage Columbus Macon Road
107 760032689 GERE Kennedy Meadows MHC
108 760033701 GERE Courtyard Springfield
Total
Sequence Number Street Address City State Zip Code Mortgage Rate (%)
--------------- ------------------------------------------------ --------------------- ----- -------- -----------------
2.1 Estates Boulevard off Whitehorse Mercervile Road Hamilton Township NJ 08650
2.2 8 Dorchester Drive East Windsor Township NJ 08512
2 Various Various NJ Various 4.840%
6 9000 Chapel Drive Waco TX 76712 5.790%
8 11755 Norbourne Drive Cincinnati OH 45240 4.800%
11 6220 North Murray Avenue Hanahan SC 29406 5.730%
12 2350 Windward Lane Gainesville GA 30501 5.500%
13 3550 East Campbell Avenue Phoenix AZ 85018 5.200%
16 7800 West Airport Boulevard Houston TX 77071 4.740%
17 1417 North Nursery Road Irving TX 75061 4.800%
18 510 Brooke Lyn Drive Pleasant Grove AL 35127 5.510%
24 10302, & 10522-42 Southeast Washington Street Portland OR 97206 5.820%
26 593 Holcomb Bridge Road Roswell GA 30076 5.510%
28 1905-2501 Plank Road Fredericksburg VA 22401 6.000%
29 80 & 95 Baylor Drive Bluffton SC 29910 5.500%
30 6808 South Memorial Drive Tulsa OK 74133 5.750%
34 7680-7860 East Highway 69 Prescott Valley AZ 86314 5.180%
39 2100 West Northwest Highway Grapevine TX 76051 5.630%
40 415 South Cedros Avenue Solana Beach CA 92075 5.680%
41 14902-14990 Northwest Freeway Houston TX 77040 5.550%
47 20209 East Smokey Hill Road Cenntennial CO 80015 5.830%
48 9832 York Road Cockeysville MD 21030 6.230%
49 10204-10208 Beechnut Houston TX 77072 5.620%
51.1 2115 Wisconsin Ave NorthWest Washington DC 20007
51.2 1600 K Street NorthWest Washington DC 20006
51 Various Washington DC Various 5.230%
53 1000 Omega Drive Pittsburgh PA 15205 5.510%
59 63 South Royal Street Mobile AL 36602 5.820%
60 5701 Truxton Avenue Bakersfield CA 93309 5.660%
62 3100 Weslayan Houston TX 77027 5.690%
64 990 - 995 Joshua Way/2750 - 2765 Progress Street Vista CA 92081 5.020%
67 7033 Commonwealth Avenue Jacksonville FL 32220 5.620%
68.1 10 Alvin Court East Brunswick NJ 08816
68.2 1 Kimberly Road East Brunswick NJ 08816
68 Various East Brunswick NJ 08816 5.580%
69 438, 480 & 510 East Wilson Bridge Road Worthington OH 43085 5.950%
71 4700 Tchoupitoulas Street New Orleans LA 70115 5.800%
72 4601 Chef Menteur Highway New Orleans LA 70126 5.800%
74 8180 East Old Canal Road Anaheim CA 92807 6.020%
76 4866 East Russell Road Las Vegas NV 89120 5.840%
78 72B Industrial Park Drive Waldorf MD 20602 5.490%
80 4900 North Broadway Boulder CO 90304 5.600%
81 1985 East Bayshore Road East Palo Alto CA 94303 5.570%
82 890 College Avenue Kentfield CA 94904 5.570%
83 4375 East Sahara Avenue Las Vegas NV 89104 5.880%
84 2711 East Tamarisk Road Palm Springs CA 92262 6.050%
85 73-4854 Kanalani Street Kailua-Kona HI 96740 5.920%
86 3900 North Tenaya Way Las Vegas NV 89129 5.790%
87 5138 Sunset Boulevard Hollywood CA 90027 5.790%
88 9870 Highway 90 A Sugarland TX 77478 5.900%
89 5710 Broadway Pearland TX 77581 5.900%
91 7111 McNeil Lane Buena Park CA 90620 5.530%
92 6751 Macon Road Columbus GA 31907 6.180%
107 2096 Kennedy Circle Northeast Keizer OR 97303 5.120%
108 6710 Commerce Street Springfield VA 22150 5.650%
Sequence Number AmortizationBasis Original Balance Cut-off Balance Remaining Term To Stated Maturity (months)
--------------- ----------------- ---------------- --------------- ------------------------------------------
2.1 12,984,055 12,887,137
2.2 12,015,945 11,926,254
2 ACT/360 25,000,000 24,813,391 118
6 ACT/360 11,750,000 11,750,000 116
8 ACT/360 9,140,000 9,140,000 58
11 ACT/360 7,600,000 7,578,419 117
12 ACT/360 6,400,000 6,386,934 118
13 ACT/360 6,130,000 6,123,788 83
16 ACT/360 4,240,000 4,240,000 60
17 ACT/360 4,000,000 3,995,547 59
18 ACT/360 3,400,000 3,400,000 120
24 ACT/360 16,000,000 16,000,000 118
26 ACT/360 12,300,000 12,300,000 120
28 ACT/360 10,860,000 10,850,999 119
29 ACT/360 10,180,000 10,180,000 119
30 ACT/360 9,500,000 9,481,631 118
34 ACT/360 7,500,000 7,492,363 119
39 ACT/360 4,300,000 4,287,507 117
40 ACT/360 4,250,000 4,241,656 118
41 ACT/360 4,000,000 3,991,922 118
47 ACT/360 2,600,000 2,595,060 118
48 ACT/360 2,600,000 2,591,377 116
49 ACT/360 2,350,000 2,345,325 118
51.1 35,592,251 35,592,251
51.2 14,907,749 14,907,749
51 ACT/360 50,500,000 50,500,000 84
53 ACT/360 24,900,000 24,900,000 120
59 ACT/360 10,700,000 10,660,341 80
60 ACT/360 5,000,000 4,995,476 119
62 ACT/360 4,650,000 4,650,000 118
64 ACT/360 26,660,000 26,660,000 56
67 ACT/360 9,285,000 9,266,530 118
68.1 3,526,882 3,526,882
68.2 2,623,118 2,623,118
68 ACT/360 6,150,000 6,150,000 118
69 ACT/360 5,040,000 5,026,401 117
71 ACT/360 7,150,000 7,117,695 81
72 ACT/360 6,850,000 6,819,050 81
74 ACT/360 6,600,000 6,600,000 118
76 ACT/360 5,775,000 5,775,000 117
78 ACT/360 5,669,000 5,644,084 57
80 ACT/360 5,510,000 5,493,911 82
81 ACT/360 5,000,000 4,985,326 82
82 ACT/360 4,300,000 4,291,353 82
83 ACT/360 4,100,000 4,077,738 80
84 ACT/360 3,915,000 3,899,418 117
85 ACT/360 3,750,000 3,739,810 117
86 ACT/360 3,600,000 3,584,989 81
87 ACT/360 3,375,000 3,375,000 118
88 ACT/360 3,100,000 3,091,537 117
89 ACT/360 3,100,000 3,087,325 117
91 ACT/360 2,182,000 2,175,553 58
92 ACT/360 2,152,000 2,140,941 116
107 ACT/360 2,225,000 2,217,757 57
108 ACT/360 13,650,000 13,650,000 60
$398,361,154
Sequence Number Stated Maturity Date Due Date Monthly Payment Administrative Fee Rate Primary Servicing Fee Rate
--------------- -------------------- -------- --------------- ----------------------- --------------------------
2.1
2.2
2 9/1/2014 1st $195,621 0.032% 0.020%
6 7/1/2014 1st 68,869 0.032% 0.020%
8 9/1/2009 1st 47,954 0.032% 0.020%
11 8/1/2014 1st 44,255 0.032% 0.020%
12 9/1/2014 1st 36,339 0.032% 0.020%
13 10/1/2011 1st 33,661 0.032% 0.020%
16 11/1/2009 1st 0 0.032% 0.020%
17 10/1/2009 1st 20,987 0.032% 0.020%
18 11/1/2014 1st 19,326 0.032% 0.020%
24 9/1/2014 1st 94,084 0.032% 0.020%
26 11/1/2014 1st 69,915 0.032% 0.020%
28 10/1/2014 1st 65,111 0.032% 0.020%
29 10/1/2014 1st 57,801 0.032% 0.020%
30 9/1/2014 1st 55,439 0.032% 0.020%
34 10/1/2014 1st 41,091 0.032% 0.020%
39 8/1/2014 1st 24,767 0.032% 0.020%
40 9/1/2014 1st 24,613 0.032% 0.020%
41 9/1/2014 1st 22,837 0.032% 0.020%
47 9/1/2014 1st 15,305 0.032% 0.020%
48 7/1/2014 1st 15,975 0.032% 0.020%
49 9/1/2014 1st 13,521 0.032% 0.020%
51.1
51.2
51 11/1/2011 1st 278,238 0.032% 0.020%
53 11/1/2014 1st 171,425 0.032% 0.020%
59 7/1/2011 1st 62,947 0.032% 0.020%
60 10/1/2014 1st 28,893 0.032% 0.020%
62 9/1/2014 1st 26,959 0.032% 0.020%
64 7/1/2009 1st 0 0.032% 0.020%
67 9/1/2014 1st 53,420 0.032% 0.020%
68.1
68.2
68 9/1/2014 1st 35,228 0.032% 0.020%
69 8/1/2014 1st 30,056 0.032% 0.020%
71 8/1/2011 1st 46,042 0.032% 0.020%
72 8/1/2011 1st 44,110 0.032% 0.020%
74 9/1/2014 1st 40,681 0.032% 0.020%
76 8/1/2014 1st 34,032 0.032% 0.020%
78 8/1/2009 1st 34,779 0.032% 0.020%
80 9/1/2011 1st 34,166 0.032% 0.020%
81 9/1/2011 1st 30,914 0.032% 0.020%
82 9/1/2011 1st 24,604 0.032% 0.020%
83 7/1/2011 1st 26,116 0.032% 0.020%
84 8/1/2014 1st 25,344 0.032% 0.020%
85 8/1/2014 1st 22,291 0.032% 0.020%
86 8/1/2011 1st 22,735 0.032% 0.020%
87 9/1/2014 1st 19,781 0.032% 0.020%
88 8/1/2014 1st 18,387 0.032% 0.020%
89 8/1/2014 1st 19,784 0.032% 0.020%
91 9/1/2009 1st 13,439 0.032% 0.020%
92 7/1/2014 1st 14,103 0.032% 0.020%
107 8/1/2009 1st 12,108 0.032% 0.020%
108 11/1/2009 1st 85,050 0.032% 0.020%
Sequence Number Master Servicing Fee Rate Ownership Interest Crossed Original Amortization (months) ARD Loan
--------------- ------------------------- ------------------ ------- ------------------------------ --------
2.1 Fee
2.2 Fee
2 0.010% Fee No 180 No
6 0.010% Fee No 360 No
8 0.010% Fee No 360 No
11 0.010% Fee No 360 No
12 0.010% Fee No 360 No
13 0.010% Fee No 360 No
16 0.010% Fee No 0 No
17 0.010% Fee No 360 No
18 0.010% Fee No 360 No
24 0.010% Fee No 360 No
26 0.010% Fee No 360 No
28 0.010% Fee No 360 No
29 0.010% Fee No 360 No
30 0.010% Fee No 360 No
34 0.010% Fee No 360 No
39 0.010% Fee No 360 No
40 0.010% Fee/Leasehold No 360 No
41 0.010% Fee No 360 No
47 0.010% Fee No 360 No
48 0.010% Fee No 360 No
49 0.010% Fee No 360 No
51.1 Fee
51.2 Fee
51 0.010% Fee No 360 No
53 0.010% Leasehold No 240 No
59 0.010% Fee/Leasehold No 360 No
60 0.010% Fee No 360 No
62 0.010% Fee No 360 No
64 0.010% Fee No 0 No
67 0.010% Fee No 360 No
68.1 Fee
68.2 Fee
68 0.010% Fee No 360 No
69 0.010% Fee No 360 No
71 0.010% Fee No 288 No
72 0.010% Fee No 288 No
74 0.010% Fee No 336 No
76 0.010% Fee No 360 No
78 0.010% Fee No 300 No
80 0.010% Fee No 300 No
81 0.010% Fee No 300 No
82 0.010% Fee No 360 No
83 0.010% Fee No 300 No
84 0.010% Fee No 300 No
85 0.010% Fee No 360 No
86 0.010% Fee No 300 No
87 0.010% Fee No 360 No
88 0.010% Fee No 360 No
89 0.010% Fee No 300 No
91 0.010% Fee No 300 No
92 0.010% Fee No 300 No
107 0.010% Fee No 360 No
108 0.010% Fee No 300 No
Sequence Number Grace Period Loan Group
--------------- ------------ ----------
2.1 2
2.2 2
2 5 2
6 5 2
8 5 2
11 5 2
12 5 2
13 5 2
16 5 2
17 5 2
18 5 2
24 5 1
26 5 1
28 5 1
29 5 1
30 5 1
34 5 1
39 5 1
40 5 1
41 5 1
47 5 1
48 5 1
49 5 1
51.1 1
51.2 1
51 5 1
53 5 1
59 5 1
60 5 1
62 5 1
64 5 1
67 5 1
68.1 1
68.2 1
68 5 1
69 5 1
71 5 1
72 5 1
74 5 1
76 5 1
78 5 1
80 5 1
81 5 1
82 5 1
83 5 1
84 5 1
85 5 1
86 5 1
87 5 1
88 5 1
89 5 1
91 5 1
92 5 1
107 5 1
108 5 1
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") was true and correct in all material respects as
of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As of the
date of its origination, and to the actual knowledge of the Seller as of
the Closing Date, such Mortgage Loan complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination, funding and servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale, transfer
and assignment to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring such
Mortgage Loan free and clear of any and all liens, pledges, charges,
security interests, participation interests and/or of any other interests
or encumbrances of any nature whatsoever and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan free
and clear of all such liens, claims, pledges, charges and interests or
encumbrances. The Seller has validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to such Mortgage Loan.
The sale of the Mortgage Loans to the Purchaser does not require the
Seller to obtain any governmental or regulatory approval or consent that
has not been obtained. Each Mortgage Note is, or shall be as of the
Closing Date, properly endorsed to the Trustee and each such endorsement
is genuine.
(4) No Holdbacks; Improvements Complete or Escrows Established. The
proceeds of each Mortgage Loan have been fully disbursed (except in those
cases where the full amount of the Mortgage Loan has been disbursed but a
portion thereof is being held in escrow or reserve accounts pending the
satisfaction of certain conditions relating to leasing, repairs or other
matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any on-site or
off-site improvement and as to disbursements of any funds escrowed for
such purpose, have been complied with in all material aspects or any such
funds so escrowed have not been released; provided that partial releases
of such funds in accordance with the applicable Loan Documents may have
occurred.
(5) Legal, Valid and Binding Obligations. Each related Mortgage
Note, Mortgage, Assignment of Leases (if a document separate from the
Mortgage) and other agreement executed in connection with such Mortgage
Loan is a legal, valid and binding obligation of the related Mortgagor or
guarantor (subject to any non-recourse provisions therein and any state
anti-deficiency legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional interest,
yield maintenance charges or prepayment premiums and except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws
affecting the enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of the
related Mortgage File an Assignment of Leases either as a separate
document or as part of the Mortgage. Each related Assignment of Leases
creates a valid, collateral or first priority assignment of, or a valid
perfected first priority security interest in, certain rights under the
related leases, subject only to a license granted to the related Mortgagor
to exercise certain rights and to perform certain obligations of the
lessor under such leases, including the right to operate the related
Mortgaged Property and subject to limits on enforceability described in
Paragraph (5). No Person other than the related Mortgagor owns any
interest in any payments due under the related leases. Each related
Assignment of Leases provides for the appointment of a receiver for rent,
allows the holder to enter into possession to collect rents or provides
for rents to be paid directly to the holder of the Mortgage upon an event
of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset, abatement,
diminution, or rescission or valid defense or counterclaim with respect to
any of the related Mortgage Note, Mortgage(s) or other agreements executed
in connection therewith, except in each case, with respect to the
enforceability of any provisions requiring the payment of default
interest, late fees, additional interest, yield maintenance charges or
prepayment premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations. Each
related assignment of Mortgage and assignment of Assignment of Leases from
the Seller to the Trustee has been duly authorized, executed and delivered
in recordable form by the Seller and constitutes the legal, valid, binding
and enforceable assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its designee, no assignment of
Mortgage and/or assignment of Assignment of Leases in favor of the Trustee
will be required to be prepared or delivered and instead, the Seller shall
take all actions as are necessary to cause the Trust to be shown as the
owner of the related Mortgage Loan on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS. Each related Mortgage and Assignment of Leases is
freely assignable upon notice to but without the consent of the related
Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in Paragraph
(5) above, each related Mortgage is a legal, valid and enforceable first
lien on the related Mortgaged Property, subject only to the following
title exceptions (each such exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially interferes with the
current use or operation of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property, (c) any other exceptions and
exclusions (general and specific) set forth in the mortgagee policy of
title insurance issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely interferes with
the current use or operation of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (d)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases), and (e) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group; and such
Mortgaged Property is free and clear of any mechanics' and materialmen's
liens which are prior to or equal with the lien of the related Mortgage,
except those which are insured against by a lender's title insurance
policy as described above and to the Seller's actual knowledge no rights
are outstanding that under applicable law could give rise to any such lien
that would be prior or equal to the lien of the related Mortgage and is
not bonded over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other instruments, if
any, related to the Mortgage Loan establish and create, and a UCC
Financing Statement has been filed, recorded or submitted for recording in
all places required by applicable law for the perfection of (to the extent
that the filing of such a UCC Financing Statement can perfect such a
security interest), a valid security interest in the personal property
granted under such Mortgage (and any related security agreement), except
as enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of the
rules of equity, and except for certain personal property and fixtures
subject to purchase money security interests and personal property leases
permitted under the terms of the Mortgage Loan. In the case of a Mortgaged
Property operated as a hotel, restaurant, healthcare facility, nursing
home, assisted living facility, self-storage facility, theatre, mobile
home park or fitness center, such personal property includes all personal
property that a prudent institutional lender making a similar mortgage
loan on like properties would deem reasonably necessary to operate the
related Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for permitted
purchase money security interests and leases; provided that any such lease
has been pledged or assigned to the lender and its assigns. In the case of
each Mortgage Loan secured by a hotel, the related Loan Documents contain
such provisions as are necessary and UCC Financing Statements have been
filed or submitted for filing as necessary, in each case, to perfect a
valid first priority security interest in the related revenues with
respect to such Mortgaged Property. An assignment of each UCC Financing
Statement relating to the Mortgage Loan has been delivered by Seller in
blank which the Purchaser or Trustee, as applicable, or designee is
authorized to complete and to file in the filing office in which such UCC
Financing Statement was filed. Each Mortgage Loan and the related Mortgage
(along with any security agreement and UCC Financing Statement), together
with applicable state law, contain customary and enforceable provisions
such as to render the rights and remedies of the holders thereof adequate
for the practical realization against the personal property described
above, and the principal benefits of the security intended to be provided
thereby; provided, if the related security agreement and/or UCC Financing
Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in favor
of the Trustee will be required to be prepared or delivered and instead,
the Seller shall take all actions as are necessary to cause the Trust to
be shown as the owner of the related Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in
rents or any other personal property to the extent that the possession or
control of such items or actions other than the filing of the UCC
Financing Statement as required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental assessments
or charges or water or sewer bills that prior to the Cut-off Date became
due and owing in respect of each related Mortgaged Property have been
paid, or if in dispute, an escrow of funds in an amount sufficient to
cover such payments has been established. Such taxes and assessments shall
not be considered delinquent or due and owing until the date on which
interest or penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments. In
the case of each Mortgage Loan, one or more engineering assessments which
included a physical visit and inspection of the Mortgaged Property were
performed by an independent engineering consultant firm and except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Master Servicer, the
related Mortgaged Property is, to the Seller's knowledge as of the Closing
Date, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material deferred
maintenance or other similar conditions, either (a) an escrow of funds was
required or a letter of credit was obtained in an amount equal to at least
125% of the amount estimated to effect the necessary repairs, or such
other amount as a prudent commercial lender would deem appropriate under
the circumstances sufficient to effect the necessary repairs or
maintenance or (b) such repairs and maintenance have been completed. As of
origination of such Mortgage Loan there was no proceeding pending, and
subsequent to such date, the Seller has no actual knowledge of, any
proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title
policy (or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each Mortgage
Loan), as of the date of the origination of each Mortgage Loan and to the
Seller's knowledge as of the Cut-off Date: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the
boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that
are insured against by the lender's title insurance referred to in
Paragraph (13) below or that do not materially and adversely affect the
value or marketability of such Mortgaged Property, and (b) no improvements
on adjoining properties materially encroached upon such Mortgaged Property
so as to materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured against by
the lender's title insurance referred to in Paragraph (13) below.
(13) Title Insurance. The Seller has received an ALTA lender's title
insurance policy or an equivalent form of lender's title insurance policy
(or if such policy is not yet issued, such insurance may be evidenced by a
"marked up" pro forma policy or title commitment, in either case marked as
binding and countersigned by the title insurer or its authorized agent
either on its face or by an acknowledged closing instruction or escrow
letter) as adopted in the applicable jurisdiction (the "Title Insurance
Policy"), which was issued by a title insurance company qualified to do
business in the jurisdiction where the applicable Mortgaged Property is
located to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of such
Mortgage Loan and its successors and assigns (as sole insureds) that the
related Mortgage is a valid first lien in the original principal amount of
the related Mortgage Loan on the Mortgagor's fee simple interest (or, if
applicable, leasehold interest) in such Mortgaged Property comprised of
real estate, subject only to the Title Exceptions. Such Title Insurance
Policy was issued in connection with the origination of the related
Mortgage Loan. No claims have been made under such Title Insurance Policy.
Such Title Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums thereon
have been paid. Immediately following the transfer and assignment of the
related Mortgage Loan to the Trustee (including endorsement and delivery
of the related Mortgage Note to the Purchaser), such Title Insurance
Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Purchaser and its successors and
assigns without consent or notice to the title insurer. The Seller has not
done, by act or omission, anything that would impair the coverage under
such Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is
not available), (a) access to a public road, (b) that there are no
encroachments of any part of the building thereon over easements, and (c)
that the area shown on the survey is the same as the property legally
described in the related Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage required
under each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located. Each Mortgaged Property was covered by a fire and
extended perils included under the classification "All Risk of Physical
Loss" insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance
and does not permit reduction in insurance proceeds for depreciation. Each
Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption or rent loss insurance policy providing coverage for at least
twelve (12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months of
rental income). If any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such
Mortgage Loan, in an area identified in the Federal Register by the Flood
Emergency Management Agency as a special flood hazard area (Zone A or Zone
V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the maximum
amount of insurance available under the applicable National Flood
Insurance Administration Program. Each Mortgaged Property and all
improvements thereon are also covered by comprehensive general liability
insurance in such amounts as are generally required by reasonably prudent
commercial lenders for similar properties; if any Mortgaged Property is
located in the state of California or in a "seismic zone" 3 or 4, a
seismic assessment was conducted (except in the case of mobile home parks)
at the time of originations and seismic insurance was obtained to the
extent such Mortgaged Property has a PML of greater than twenty percent
(20%) calculated using at least a 450 a year look back with a 10%
probability of exceedance in a 50 year period; all properties in Florida
and within 25 miles of the coast of Texas, Louisiana, Mississippi,
Alabama, Georgia, North Carolina and South Carolina have windstorm
insurance; any nonconformity with applicable zoning laws and ordinances
(1) is not a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the event of
casualty or destruction, may be restored or repaired to materially the
same extent of the use or structure at the time of such casualty, (3) is
covered by law and ordinance insurance in an amount customarily required
by reasonably prudent commercial or multifamily, as applicable, mortgage
lenders, (4) is covered by a zoning endorsement covering any loss to the
mortgagee resulting from such non-conformity or (5) is covered by
insurance that will provide proceeds that, together with the value of the
related land, will be sufficient to repay the Mortgage Loan; and
additionally, for any Mortgage Loan having a Cut-off Date Balance equal to
or greater than $20,000,000, the insurer for all of the required coverages
set forth herein has a claims paying ability rating from Standard &
Poor's, Moody's or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At origination,
and to the Seller's knowledge as of the Closing Date, such insurance was,
or is, as applicable, in full force and effect with respect to each
related Mortgaged Property and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller;
and except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the related
Loan Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse the
proceeds as the repair or restoration progresses, other than with respect
to amounts that are customarily acceptable to commercial and multifamily
mortgage lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan. The insurer with respect to each
policy is qualified to write insurance in the relevant jurisdiction to the
extent required. All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not terminable
(nor may the amount of coverage provided thereunder be reduced) without 30
days' prior written notice to the mortgagee (or, with respect to
non-payment, 10 days' prior written notice to the mortgagee) or such
lesser period as prescribed by applicable law; and no such notice has been
received, including any notice of nonpayment of premiums, that has not
been cured. With respect to each Mortgage Loan, the related Mortgage
requires that the related Borrower or a tenant of such Borrower maintain
insurance as described above or permits the mortgagee to require insurance
as described above. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender after September 11,
2001 or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, for each
Mortgage Loan, (A) the related all risk property casualty insurance policy
and business interruption policy do not exclude acts of terrorism, or any
related damage claims or (B) Borrower has obtained insurance satisfying
the above coverage requirements against damage and business interruption
resulting from acts of terrorism, from coverage as of the later of (i) the
date of origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that any
right to require such coverage may be limited by commercially reasonable
availability. The Mortgage for each Mortgage Loan provides that proceeds
paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the
related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due
under the Mortgage Loan; and provided, further, that, if the related
Borrower holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the related
Ground Lease (as defined in Paragraph (44) below).
(15) No Material Defaults. Other than payments due but not yet 30
days or more delinquent (A) there exists no material default, breach,
violation or event of acceleration under the related Loan Documents and
(B) since the date of origination of such Mortgage Loan, there has been no
declaration by the Seller or prior holder of such Mortgage Loan of an
event of acceleration under the related Loan Documents, and (C) to
Seller's actual knowledge no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration under any of
such documents has occurred and is continuing; the Seller has not waived
any material default, breach, violation or event of acceleration under any
of such documents; and under the terms of each Mortgage Loan, each related
Mortgage Note, each related Mortgage and the other Loan Documents in the
related Mortgage File, no person or party other than the mortgagee may
declare an event of default or accelerate the related indebtedness under
the Loan Documents; provided, however, that this representation and
warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to the
subject matter otherwise covered by any other representation and warranty
made by the Seller in this Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months) has not been, 30 days or more past
due in respect of any Monthly Payment without giving effect to any
applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the holder of
the Mortgage Note, each related Mortgaged Property to secure any other
promissory note or obligation, other than another Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but
without regard to the rule in Treasury Regulations 1.860G-2(f)(2) that
treats a defective obligation as a qualified mortgage, or any
substantially similar successor provision) and the related Mortgaged
Property, if acquired by a REMIC in connection with the default or
imminent default of such Mortgage Loan, would constitute "foreclosure
property" within the meaning of Section 860G(a)(8), assuming compliance
with all of the requirements of a "foreclosure property" under Section
856(e)(4) by the Trustee, the Master Servicer, the Special Servicer, as
applicable, and their respective agents, but without regard to the holding
period requirements set forth in Section 856(e)(2). Prepayment Premiums
and yield maintenance charges payable with respect to each Mortgage Loan,
if any, constitute "customary prepayment penalties" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more environmental site
assessments meeting the requirements of the American Society for Testing
and Materials in effect at the time the related report was or the related
reports were prepared covering all environmental hazards typically
assessed for similar properties including use, type and tenants of the
Mortgaged Property (an "Environmental Report"), or an update of such an
assessment, was performed by an experienced licensed (to the extent
required by applicable state law) environmental consulting firm with
respect to each Mortgaged Property securing a Mortgage Loan in connection
with the origination of such Mortgage Loan and thereafter updated such
that, (a) such Environmental Report is dated no earlier than twelve months
prior to the Closing Date, (b) a copy of each such Environmental Report
has been delivered to the Purchaser; and (c) either: (i) no such
Environmental Report provides that as of the date of the report there is a
material violation of any applicable environmental laws with respect to
any circumstances or conditions relating to the related Mortgaged
Property; or (ii) if any such Environmental Report does reveal any such
circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material
respects, then one or more of the following are true--(A) a party not
related to the related Mortgagor with financial resources reasonably
adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or circumstance,
(B) the related Mortgagor was required to provide additional security
adequate to cure the subject violation in all material respects and to
obtain an operations and maintenance plan, (C) such conditions or
circumstances were investigated further and based upon such additional
investigation, an independent environmental consultant recommended no
further investigation or remediation, or recommended only the
implementation of an operations and maintenance program, which the
Mortgagor is required to do, (D) there exists an escrow of funds
reasonably estimated to be sufficient for purposes of effecting such
remediation, (E) the related Mortgaged Property is insured under a policy
of insurance against losses arising from such circumstances and
conditions, (F) the circumstance or condition has been fully remediated,
(G) the related Mortgagor provided a "no further action" letter or other
evidence acceptable to the Seller and that would be acceptable to a
reasonably prudent lender, that applicable federal, state or local
governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or
circumstance, (H) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is the lesser of (a) 2% of the
outstanding principal balance of the related Mortgage Loan and (b)
$200,000, (I) the related Mortgagor or another responsible party is
currently taking such actions, if any, with respect to such circumstances
or conditions as have been required by the applicable governmental
regulatory authority, or (J) a responsible party with financial resources
reasonably adequate to cure the violation provided a guaranty or indemnity
to the related Mortgagor to cover the costs of any required investigation,
testing, monitoring or remediation. To the Seller's actual knowledge and
without inquiry beyond the related Environmental Report, there are no
significant or material circumstances or conditions with respect to any
Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Mortgagor questionnaire delivered to Seller at the
issue of any related environmental insurance policy, if applicable, that
render such Mortgaged Property in material violation of any applicable
environmental laws. The Mortgage, or other Loan Document in the Mortgage
File, for each Mortgage Loan encumbering the Mortgaged Property requires
the related Mortgagor to comply and cause the Mortgaged Property to comply
with all applicable federal, state and local environmental laws and
regulations. The Seller has not taken any action which would cause the
Mortgaged Property not to be in compliance with all federal, state and
local laws pertaining to environmental hazards or which could subject the
Seller or its successors and assigns to liability under such laws. Each
Mortgagor represents and warrants in the related Loan Documents generally
to the effect that except as set forth in certain specified environmental
reports and to the best of its knowledge that as of the date of
origination of such Mortgage Loan, there were no hazardous materials on
the related Mortgaged Property, and that the Mortgagor will not use, cause
or permit to exist on the related Mortgaged Property any hazardous
materials, in any manner which violates federal, state or local laws,
ordinances, regulations, orders, directives, or policies governing the
use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller and its successors and assigns harmless from and against,
or otherwise be liable for, any and all losses resulting from a breach of
environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan, generally including any
and all losses, liabilities, damages, injuries, penalties, fines, expenses
and claims of any kind or nature whatsoever (including without limitation,
attorneys' fees and expenses) paid, incurred or suffered by or asserted
against, any such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if customary, non-judicial foreclosure,
subject to the effects of bankruptcy or similar law affecting the right of
creditors and the application of principles of equity, and there is no
exemption available to the Mortgagor which would interfere with such right
to foreclose except any statutory right of redemption or as may be limited
by anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of whether such
enforcement is considered in a proceeding
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